..*^.. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 

I.I 

1^12^    12.5 
■^  ilii    12.2 

VA 

1111.25 

r-^  iiii'-^ 

—    6" 


W^W 


'/ 


& 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

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A 


:<s 


CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICIVIH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibllographlques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibllographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checlced  below. 


D 


D 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommagAe 

Covers  restored  and/or  laminated/ 
Couverture  restaurAe  et/ou  pelliculAe 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  gAographlques  en  couleur 

Coloured  inlc  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  Illustrations/ 
Planches  et/ou  Illustrations  en  couleur 

Bound  with  other  material/ 
ReUA  avec  d'autres  documents 


r~71    Tight  binding  may  cause  shadows  or  distortion 


D 


along  Interior  margin/ 

La  reliure  serr^e  peut  causer  de  I'ombre  ou  de  la 

distortion  le  long  de  la  marge  intArleure 

Blanit  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certalnes  pages  blanches  ajouttes 
tors  d'une  restauration  apparaissent  dans  le  texte, 
mals,  lorsque  cela  Atalt  possible,  ces  pages  n'ont 
pas  AtA  filmAes. 

Additional  comments:/ 
Commentaires  supplAmentalres: 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'll  lui  a  «t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  methods  norntale  de  f ilmage 
sont  indiquAs  ci-dessous. 


D 
D 
D 
D 
D 
D 
D 
D 
D 
D 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommag6es 

Pages  restored  and/or  laminated/ 
Pages  restaurtes  et/ou  pelllcultes 

Pages  discoloured,  stained  or  foxed/ 
Pages  dAcolorAes,  tacheties  ou  piquAes 

Pages  detached/ 
Pages  d6tach6es 

Showthrough/ 
Transparence 

Quality  of  print  varies/ 
Qualit*  intgale  de  I'lmpression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplAmentaire 

Only  edition  available/ 
Seule  idition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  ref limed  to 
ensure  the  best  possible  Image/ 
Les  pages  totalement  ou  partieliement 
obscurcles  par  un  feulllet  d'errata,  une  peiure, 
etc..  ont  M  filmAer  ik  nouveau  de  fapon  A 
obtenir  la  mellleure  Image  poseibt^. 


This  Item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  de  reduction  indiqu*  ci-dessous. 

10X  14X  18X  22X 


26X 


30X 


n/ 


12X 


16X 


20X 


24X 


28X 


32X 


Th«  copy  filmad  h«r«  ha«  b««n  r«produc«d  thanks 
to  tho  gonarosity  of: 

University  of  British  Columbia  Library 


L'axamplaira  ffilmt  fut  raproduit  grAca  A  la 
gAntrositA  da: 

University  of  British  Columbia  Library 


Tha  imagaa  appaaring  hara  ara  tha  bast  quality 
possibia  considaring  tha  condition  and  lagibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  spacif icatibns. 


Las  imagas  suivantas  ont  AtA  raproduitas  avac  la 
plus  grand  soin,  compta  tanu  da  la  condition  at 
da  la  nattatA  da  Taxampiaira  film4,  at  an 
conformity  avac  las  conditions  du  contrat  da 
filmaga. 


Original  copias  in  printad  papar  covars  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  last  paga  with  a  printad  or  illustratad  impras- 
sion,  or  tha  back  covar  whan  appropriata.  All 
othar  original  copias  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illustratad  impras- 
sion,  and  anding  on  tha  last  paga  with  a  printad 
or  illustratad  imprassion. 


Tha  last  racordad  frama  on  aach  microfiche 
shall  contain  tha  symbol  — »>  (maaning  "CON- 
TINUED"), or  tha  symbol  y  (maaning  "END"), 
whichavar  applias. 


Las  axamplairas  originaux  dont  la  couvortura  an 
papiar  ast  imprimAa  sont  filmAs  an  commandant 
par  la  pramiar  plat  at  an  tarminant  soit  par  la 
darniira  paga  qui  comporte  una  amprainta 
d'imprassion  ou  d'illustration,  soit  par  la  sacond 
plat,  salon  la  cas.  Tous  las  autras  v^yxampiairas 
originaux  sont  filmte  an  commanvant  par  la 
pramlAra  paga  qui  comporta  una  amprainta 
d'imprassion  ou  d'illustration  at  an  tarminant  par 
la  darnlAra  paga  qui  comporta  una  talla 
amprainta. 

Un  das  symbolas  suivants  apparaltra  sur  la 
darnlAra  imaga  da  chaqua  microficha.  salon  la 
cas:  la  symbols  — ^  signifia  "A  SUIVRE".  la 
symbols  y  signifia  "FIN". 


Maps,  platas,  charts,  otc,  may  ba  filmad  at 
diffarant  reduction  ratios.  Thosa  too  larga  to  ba 
antiraly  included  in  ona  exposure  ara  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  ^fiagrams  iiluatrata  the 
method: 


Les  cartas,  planches,  tableaux,  etc.,  peuvent  Atre 
filmis  A  des  taux  da  reduction  diff Grants. 
Lorsqua  le  document  est  trop  grand  pour  Atre 
raproduit  en  un  seul  clichA,  il  est  film*  A  partir 
da  Tangle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas.  en  prenant  la  nombre 
d'imagas  nAcessaire.  Las  diagrammes  suivants 
illustrant  la  mAthode. 


1  2  3 


1 

2 

3 

4 

5 

6 

Fl 


IN  THE  MA' 
THE 


ARC 


FUR-SEAL  ARBITRATION. 


IN  THE  MATTER  OF  THE  CLAIMS  OF  GREAT  BRITAIN  AGAINST 

THE  UNITED  STATES  OF  AMERICA  BEFORE  THE 

BERING  SEA  CLAIMS  COMMISSION. 


ARGUMENT  FOR  THE  UNITED 
STATES  IN  REPLY. 


WASHINGTON: 

GOVERNMENT    PRINTING   OPPICB. 
1897. 


'  i    '. 


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f\j'^  /.JP  .Kiii^-i;! 


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VfU 


INTIIODUCTOR'S 

Ah  to  reflec 
Itepresenta 
aiTi,  and 
Alleged  "I 
ComparatiT 

SUMMARY  OF  ] 
The   INTERNA'! 

The  questi 
settled  b 
and  of  c« 

As  applied 

ISCOPE  AND  IN 

Jurih  "^tio 

Constructi< 

Prior  diplo 

No  ambigt 

Conimiss 

Precedents 

No  other  cl 

Analysis  o 

Claims  of  i 

IPeksons  in  w 

vene  un  dei 

British  sul 

of  latter 

Perm  ''  liri 

Evidence  < 

Owes  obed 

And  allegi 


COIirTEN"TS. 


Page. 

Introductory  statement 1-12 

As  to  reflections  upon  the  Tin  ited  States 1 

Representative  statements  in  the  Argument  of  Great  Brit- 
ain, and  comments  thereon 5 

Alleged  "  Insults  to  flag,"  and  comments 8 

Comparative  unimportance  of  the  claims 11 

SUMMARY  OF   I'OSITIONS   IN  UEPLV 12-19 

IIE   INTERNATIONAL  LAW  APPLlCAnLB  HERE 19-59 

The  <iuestions  ruled  by  authoritative  and  positive  law,  as 
settled  by  treaties,  judgments  of  international  tribunals 
and  of  courts ....   19 

As  applied  to  the  claims 20 

ISCOPE  AND  INTERPRETATION  OF   THE   CONVENTION 22-39 

Jurist '  •  -tion  under 22, 24, 33 

Construction  in  general 23 

Prior  diplomatic  corresiwndence  can  not  enlarge 23, 24, 32 

No  ambiguity;  plain  reference  of  specitic  matters  to  the 

Commission 25 

Precedents  and  authorities 27 

No  other  claims  referred  than  those  specified 32 

Analysis  of  convention 33 

Claims  of  specified  "persons"  referred 36, 37 

IPersons  in  avhose  behalf  Great  Britain  can  not  inter- 
vene UNDER  THE  CONVENTION 40-66 

British  subject  domiciled  in  the  Lfnited  States  a  civil  citizen 

of  latter  nation 40 

Term  ''  British  subjects"  intentionally  omitted 41 

Evidence  of  domicile 43 

Owes  obedience  to  laws  of  the  United  States 44 

And  allegience  to  their  sovereign  claints 45 


ii  contents. 

Persons  in  whose  behalf  Great  Britain  can  not  intkr- 

VENE   under  tub  CONVENTION — CoiltillUed.  Page. 

Great  Britain  can  not,  make  ie<'lar»>ntion  against  the  United 

States  for 4G  j 

Limit  of  (heat  Britain's  right  to  intervene  for  protection. .  49 j 

The  Treaty  of  1815  <!()vers  case  of 51 1 

Oriyiiuil  citizens  of  United  Ntates   rrm  ij  tlomicilcdy  if  not 
nutu)(dizi'(t,  ill   (Iri'dt  Uritaiii,  not  pernoim  for  icliom  that 

nation  van  make  reclamation 53-061 

Anthorities  in  British  Argument  analyzed 541 

Such  ('itizens  still  owe  allegiance  to  sovereign  claims  and 

extraterritorial  laws  of  United  States 59| 

Nation  of  domicile  can  not  make  reclamation  against  country 
of  original  allegiance  for  injuries  8uHere<l  in  violating  sucli 

allegiance  and  laws ()3| 

The  claims  hkre  not  claims  of  na'jion 06, 84J 

Vessels — Keoistuv  ano  fla(j  not  material  here 08-7o| 

Vessels — Nationality  follows  ownership,  not  owner- 
ship nationality  .    71-811 

Kegistry  by  British  and  American  authorities  not  conclu- 
sive against  anyone  except  person  securing  it 731 

It  is  a  municipal  regulation  only 74 j 

Authorities  in  British  argument  analyzed 791 

Registry,  not  effective  like  a  "sea  letter"  or  "ship's  pass". .  81 1 
The  specific  claims  eliminated  uecause  of  citizenship, 

CIVIL  OR  political 80-931 

Compensation  or  "Measure  of  Damages" 93-148J 

Prospect  ire  Catch,  loss  of  Catch,  etc 93  j 

Prospective  Catch — The  Judgment  of  Geneva 94J 

Error  in  opposing  argument  corrected 94J 

Prospective  Catch — British  and  American  authorities 101 1 

Prospective    Catch — Judgments    of    other    International 

Tribunals 1051 

Prospective  Catch — Other  judgments  of  the  courts 109J 

Piospective  Catch — Authorities  in  opposing  argument  ana- 
lyzed    1101 

Compensation —  Warnings 1161 

No  prospective  catch 1161 

Proper  measure lL*4l 


'ompknsatio? 
Pmiitorji  oi 
Alabama  C 
The  chargt 
Kevicw  of  1 
I'reposteroi 
Kxp(M'ieiict 
(.'()iii])aris()i 
I'ersinial  ch 
Claims  for 
The  incaHin 
Interest  as 
Interest  in 
also— leg 
The  law  as' 
iTiii:  Costs  in 

ITIIK  AT)DITIO^ 

TiiH  "Oscars 

lOnSEHVATIONt 
The  '^  I'ath, 
The  "  lilac 
James  Gaii 
The  CaroU 
claimant 


Uncertain  ci 

No  DEFINED  " 

1  >uration  of 
"  .Method   fo 

cussed  . . 
The  value  oi 
Evidence  re 
The  Caroh 
The  Thorn 
The  Omen 
The  Anna 
The  Grace 
The  Ada  . 


CONTENTS. 


Ill 


Ompknsation  or  "Measure  of  Damages"— Continued. 

I'luiitori/  or  tihulictive  dmniujeH 

Alabama  Cliunis  <ta.sc  not  in  point 

Tlu'  cliiirge  .»f  wantonness 

Hevicw  of  the  authorities 

I'rcpnHtcnnin  vlnims 

HxptM'ience  under  otIuM'  eonventions 

<'()iii]>arison  v  ith  preeedents 

I'tisoiiiil  claims  /'or  (Imnagt'sfor/nlsr  imprisoiiment,,  etc 

Vliihiis  for  h'ljul  xer riven 

rite  iiH'dsurc  of  nihir  of  seal  skins 

lutcresl  as  danimies 

interest  in  lieu  of  future  earninffs  and  the  future  earnings 

also— legal  absurdity 

The  law  as  to  interest — authorities 

If IIH  ('OSTS   IN  SAVWAKU  (JASE 

The  Additional  Claims 

The  "Oscar  AxND  Hattie"  Case !.'», 

lonservatlons  apim.ying  only  to  laav  on  certain  claims 

The  "  Patlifiiiiler^''  in  Xeah  liaif 

rite  "  lllaeic  IHamoiul,''  Xo.  5    

Jainea  Oaiidiii^s  '■'^ personaV  claim 

The  Carolena,  Onward,  and  Thornton  as  to  abandonment  bif 
elaima  nts 


Uncertain  character  of  seal  hunting 

No  DEFINED  "SEALING  GROUNDS"  IN  BERING  SEA 

Duration  of  the  sealing  season  in  Bering  Sea 

"Method   for    computing   the    estimated   catch"   dis- 
cussed   

The  value  of  seal  skins 

lOviDENCE   relating  TO   VALUE  OF  VESSELS 

The  Carolena 

The  Thornton 

The  Onward 

The  Atina  Beck 

The  Grace  and  the  Dolphin 

The  Ada 


126 
126 
129 

lai 
i;5;{ 
i;w 
i;57 
i;w 
in 

141 

14;5 

114 
148 
153 
J,  477 
156 
15(; 
l.-»S 
15S 

158 


177 
209 

228 

247 

258 
265 

303 

305 

308 

310 

314 

315 


IV 


CONTENTS. 


Tkusonal  claims  of  captains  and  mates .'U9 1 

The  Cakolena .'W7 

The  Thornton 3r>7 

The  Onwakd 364 

The  Favourite 3G9 

The  Black  Diamond  (188«>) aTS 

The  W.  V.  Sayward 382 

The  Anna  Heck 388 

The  Alfred  Adams 392 

The  Grace  and  the  Dolphin 39') 

■The  Ada 402 

The  Triumph  (1887) 408 

The  Juanita 414 

The  Pathfinder  (1889) 418 

The  Hlack  Diamond  (1889)  and  the  Lily 423 

The  Minnie 437 

The  Triumph  (1889) 442 1 

The  Ariel 447 

The  Kate 457 1 

The  J»athfinder  (1890) 462 

The  Henrietta 460 1 

The  Oscar  and  Hattie 477 

The  Winifred 484 

The  Wanderer 490  i 


AKGUMKNT  FOII  TIIK  UNITED  STATES  IN 

KEPI.Y. 


INTRODUCTORY   STATEMENT. 

Ill  siibinittin<>'  tlii'ir  views  to  tlic  Ili<ih  ('oinnii.ssioii, 
liii  reply  t«>  tlio  Jirfi'iinu'iit  presented  in  bi'linlf  of  (Jreat 
Hritiiin,  the  lUKlersijiiied  will,  tor  the  i)urj)oses  of 
iniderly  and  convenient  eoinjiiirison,  pnrsne  as  nearly 
liismay  he  the  nomenclature  an<l  sequence  of  subjects 
|iis  found  in  the  British  arg-uinent. 


The  counsel  of  the  United  States  conceive  that 
Iwlien  their  country  conies  to  this  ])lace  of  justice,  set 
lii|i  in  a  coinnion  spirit  of  jrood  will  and  friendship 
l)y  these  twog-reat  nations  of  equal  di<>nity  and  equal 
s(lf-resj)ect,  it  should  iind  that  sj)irit  abidin*^'  and  niani- 
Itost  not  only  at  the  altar  but  in  all  the  ministers  of 
Itlic  temple. 

They  assert  before  the  Tril)unal  at  tlie  outset,  that 
no  juridical  })ur[)ose  can  be  served,  either  by  way  of 
interpretation  of  its  orj»'anic  law  and  rule  of  action — 
lie  Convention  of  181)6 — or  of  its  enlig-htment  on  the 
||iit'stions  of  liability  or  conq)ensation  presented  at  its 
1>iir,  by  imputations  upon  tlie  g<K)d  faith  of  the  United 
tiites,  insinuations  against  the  truthfulness  of  their 
tiiiiiiisters,  and  charges  of  wantonness  and  evil  motive 
piiijiinst  the Goverinnent.  These  pervade  theargument 
'■ '  Great  liritain  from  its  introduction  until  the  close  of 
B  s 1 


INTRODUCTORY    STATKMKNT. 


its  j^viu'rnl  (lisciissioii.  'I'licy  iuc  stafiuin'iits  ot"  proiiii- 
ncnt  niul  iiii|ir('ssi\('  irrt'lcvaiu'c.  'Dicv  iiiv  iit  wiir 
witli  the  spirit  of  iirhitnitioii,  and  tlu<  ti'iidciicv  of  their 
iiiHiiencc  is  aj^ainst  the  ;iiMU'ral  acceptance  ot  that  j»ol- 
icy  for  tlie  jx'acefnl  settlement  <>f  international  dis- 
j)iites,  throufih  conrts  of  conciliation,  wliich  is  saitl  l»y 
o'ood  nu'n  o,f  all  nations  to  lu'  the  universal  desire  of 
ad\anced  humanity  and  the  highest  civili/ation. 

There  has  i)een,  douhtless,  some  pntj^ress  toward 
the  accctmplishment  ot  that  wish,  so  vij^orously  pro- 
fessed hy  some,  and  so  sincei'cly  felt  l»y  others. 

However  that  ntay  he,  the  annals  of  forensic  and 
even  of  judicial  discussion  in  courts  oi'  international 
arbitration  within  the  past  three  and  a  half  decades 
have  certainly  not  furnished  impulse  to  the  move- 
ment. To  all  who  have  faith  in,  and  who  ir.voke  its 
successful  issue,  such  annals  seem  to  teach  the  lesson 
that  in  our  <lel)ates  in  these  temples  of  peace  the 
ach'ocates  of  l)oth  nations  nn'<^'ht  with  pr(>tit  moni 
often  liave  ret'ourse  to  the  ji'entler  lexicons  of  war. 

Tlu^  tradition  of  Fontenoy  furnishes  a  hetter  jiuide 
for  the  exchanji'e  of  views  between  nations  met  to- 
ji'ether  in  courts  of  conciliation  and  judjiinent  than 
some  of  their  recctrded  )»recedents.* 

We  shall  submit  later  on,  wlien  we  take  up  tlio  sub- 
ject of  the  interpretation  of  the  treaty  and  convention, 
that  the  correspondence  between  the  Governments, 
frajiinents  of  which  are  referred  to  and  connnented  on 
in  the  British  arjiunient  under  the  ca[)tion  "Introduc- 
tor\ ,"  is  entirely  irrelevant  here. 

It  was  all  conducted,  and  relates  to  a  ])eriod  prior 
to  the  treaty  of  Washinjiton  of  February  29,  1892, 
under  which  the  Paris  Tribunal  afterwards  sat  and 
made  its  award,  and,  of  course,  many  years  ])rior  to 
the  treaty  or  convention  under  which  this  Conunis-| 
sion  sits. 


•  See   Geneva  Arb. ,  vol.  3,  p.  203 ;  Id.,  vol.  3,  p.  48x ;  vol.  4,  p.  12,  sec.  7. 
Papers,  Treiity  of  Wa.sliinf^ton. 


Icadino-  om-s 
many  and  c( 
the  wlu)le  Ix 
(•hallen<>-ed  I 
In  the  Br 
statement  is 

(1)  This  cor 
Dciiurred  on  t 
rixpcvtuKj  the 
»/  State' on  ti 
iiiiide  for  part 
"if  September, 
piirticulius  n 
'  Hired  Statei- 
Mot  before  the 
inuiiieate  the 


INTKODUCTOKY    STATKMKNT, 

Wliiitcvcr  ot"  (•(•Mtr«>V(*rsy  or  <»t"  (litVerciiccs  iiiny 
li;i\('  liccn  «lis('Uss(Ml  ill  tlu*  diplomatic  coi-i'i'spoiKlciici* 
hctwi't'ii  the  iiiitioiis,  they  were  disposed  of  by  tlio 
trnitN',  tiic  iiwjird,  and  tlu*  coiivciition.  Kor  ilii^^  and 
iitlicr  reasons,  uliicii  will  he  referred  to  in  iiii.llier 
jihice,  tin*  United  States  ohjected  to  its  intn.  lueti(Hi 
;it  the  hearin^i"  on  the  I'acilic  (Joast,  and  dr  •  ined  there 
til  encnn\'ter  the  record  hy  putting'  in  answerin;.',  e\  i- 
(lenc**  to  i-onipleti'  the  diploinati*'  history  here  •vjiicli 

;is  so  tully  set  ont  in  tlie  lonji'  record  of  the  ))roceed- 
iiiLis  of  the  I'aris  Trihnnal. 

The  conclusions  drawn  from  the  correspon(h'nce, 
MS  stated  for  the?  information  of  the  com?iiissionei's  in 
tilt'  liiMtish  ar<iument,  in  so  far  as  they  reHect  u\Hm 
tlic  positions  or  the  conduct  of  the  I'niteil  Stat»*s,  are 
( rioneous,  and  in  many  respects  have  nothinji'  what- 
(xcr  to  supp()rt  them  in  the  complete  evidence  of 
Imtli  (ilo\-ei"nments  furnished  hy  them  as  the  diplo- 
matic history  of  the  subject-matter  in  the  Paris 
record. 


Inasmuch,  however,  as  these  statements  in  the 
argument  of  (ireat  Britain  will  pass  into  the  history 
of  international  affairs,  it  is  proposed  to  take  some 
Icadinn-  ones  from  that  ar<>'ument  as  representative  of 
many  and  connnent  upon  them  briefly,  in  onU'r  that 
the  whole  body  of  them  may  jifo  into  the  proceeding's, 
(•liallen<''ed  bv  the  Tnited  States. 

In  the  British  argument,  at  page  6,  folio  AO,  this 
statement  is  made: 

(1)  This  correspondence  shows  that  although  the  seizures 
o((!uiTe(l  on  the  1st  and  2d  August,  188(5,  and  information 
rispertiiiy  the  same  teas  received  hi/  the  United  /States  Secretary 
of  state  OH  the  isth  of  the  same  month,  and  a  refjuest  was 
iiiade  for  particuhirs  by  the  British  Governinent  on  the  27th 
lit  September,  no  intimation  as  to  tlie  cause  of  seizure  or  any 
|iiirti('uhiis  rehiting  thereto  couhl  be  obtained  from  the 
I  lilted  States  Government  until  the  12th  of  April,  1887,  and 
not  before  the  11th  of  .luly,  1887,  did  that  (roverumeut  com- 
iiiunicate  the  precise  nature  of  the  proceedings. 


INTRODUCTORY    STATEMENT. 

It  is  to  be  observed,  in  connection  witli  tlie  state- 
ment italicized,  that  tlie  ini})lication  is  tliat  Mr.  Bayard, 
the  American  Secretarv  of  State,  while  havin<>'  the 
information  from  An<>ust  18,  l.S8(>,  wrote  to  the  Hritish 
ambassador  on  November  12,  188(!,  that  he  had  not 
received  it,  and  that  he  withheld  the  information, 
already  weeks  and  months  in  his  possessicm,  afrer  he 
had  received  the  notes  of  in(|niry  from  the  l^ritish 
ambassador  of  September  27,  1886,  and  October  21, 
1886,  askin<>-  for  it. 

It  is  submitted  that  the  statement  ([uoted  from  the 
arofument  of  Great  Britain  has  nothinj*-  whatever  to 
rest  upon  in  any  })lace  in  the  record  or  out  of  it. 

Moreover,  it  aj)i)ears  from  the  testimony  of  witnesses 
on  this  record  that  the  mail  facilities  between  Alaska 
and  the  railway  mail  connections  on  the  Pacific  Coast 
with  Washington  were  not  only  very  irreg-ular,  but 
that  the  time  was  from  ten  days  to  two  weeks  at  this 
period;  to  that  nuist  be  added  the  time  across  the  con- 
tinent bv  rail  from  the  Pacific. 

Secretary  Bayard  states  that  he  delivered  the  infor- 
mation desired  as  soon  as  he  could  {^ive  accurate  and 
authentic  information. 

This  was  furnished  with  far  more  expedition  than 
is  usual,  as  shown  by  the  diplomatic  history  of  nations. 
In  all  the  history  of  Great  Britain's  foreign  relations 
there  is  not  a  case  where  there  was  as  nmch  expedi- 
tion in  like  circumstances. 

In  the  Fortune  Bay  cases,  referred  to  in  the  Bntish 
brief,  Mr.  Evarts  snbn\itted  to  Great  Britain  the  claims 
of  the  United  States,  for  attacks  upon  and  damages  to 
twenty-two  vessels  under  the  iVmerican  flag-,  on  August 
1,  1879.  He  received  a  rej)ly  fron\  Great  Britain  on 
April  3,  1880.  (Foreign  Relations,  Great  Britain, 
1880,  vol.  72,  p.  1277  at  seq.) 

In  the  case  of  the  ship  Jones  (an  ocean  ship  with 
her  cargo,  worth  more  than  all  the  ju'operty  of  British 


subjects  inv( 
British  umj) 
('(unmission 
;i  shi})  sailin 
|)rol)able  cai 
then  Secret) 
itddressed  a 
lucnt,  setting 
iitc  attentioi; 
was  no  repb 
no  excuse  \\ 
ls4<i-47,  p. 

Nations  d 
may  affect  t 
cration  and 
here  should 
iiuce  with  th 
they  existed 
this  matter  1 
-bisticfa  )i  E 
Tril)unal.) 

The  ami)} 
Washington 
or  )K)i('H  verb 
Mr.  Bayard. 

(.)f  such  ii 
l)ut  there  is 
the  ambass} 
.Mr.  Bayard 
furnished  it 
ance  with  u 

On  pagt) 

(2)  For  iriai 
litbility,  shift 
niiteiuible  poi 
whole  of  whi( 
tioii  whateve 
tVoin  their  ac 


INTRODUCTORY    STATEMENT. 


subjects  involved  in  tliis  case  to<^'etlier),  wherein  the 
r>iitisli  umpire  afterwards  found,  inider  the  ^[ixed 
Comniission  of  liSoS,  that  a  British  cruiser  had  seized 
ii  sliip  sailinj^  under  the  American  Hag-,  witliout  any 
|)i(>l)iil)le  cause  and  without  a  sha(h^w  of  excuse,  our 
then  Secretary  of  State,  Edward  Everett,  in  1843, 
ii(l(h'essed  a  letter  of  complaint  to  the  British  Govern- 
ment, setting  forth  the  facts  and  inviting  the  immedi- 
ate attention  of  that  Government  to  the  case.  There 
was  no  reply  received  for  three  and  a  half  years,  and 
no  excuse  was  oftered  for  the  delay.  (Id.,  vol.  35, 
lS4()-47,  p.  655  vt  seq.) 

Nations  do  not  take  positions  upon  facts  which 
may  aii'ect  their  rights  and  obligations  without  delib- 
eration and  proper  investigation.  The  presumption 
here  should  be  that  Secretary  Bayard  acted  in  accord- 
ance with  the  usages  of  nations  and  the  conditions  as 
they  existed.  (It  was  conceded  that  he  so  acted  in 
this  matter  by  Sir  Charles  Russell,  now  Lord  Chief 
■lusticfa  :)f  England,  in  his  argument  before  the  Paris 
Tril)unal.) 

The  airdiassador  of  (ireat  Britain  was  resident  at 
Wasliington,  and  outside  of  all  formal  communications 
oi'  )K)t('8  verbal es,  WHS  in  informal  connnunication  with 
Mr.  Bay;u"d. 

Of  such  interviews  there  is,  of  course,  no  evidence; 
Init  there  is  no  intimation  anywhere  cm  the  part  of 
the  ambassador,  or  of  the  British  Government,  that 
Mr.  Bayord  had  withheld  information,  or  had  not 
furnished  it  with  such  expedition  as  was  in  accord- 
ance with  usage  and  the  circumstances. 

On  page  20,  folit)  20,  we  find  this  statement: 

(U)  For  many  years  the  United  States  have  disputed  tlieir 
1)  tbility,  shifting  their  ground  from  time  to  time  from  one 
untenable  position  to  another  equally  unsound,  during  the 
wliole  of  which  period  they  have  failed  to  niiike  any  repara- 
tion whatever  to  the  parties  who  were  the  direct  sufferers 
from  their  acts  and  pretensions. 


INTRODUCTORY    STATEMENT. 


And  at  i)5i<»e  10,  folios  10-20,  we  lind  this  state- 
ment as  a  ])reniise  to  the  above: 

This  correspoiuleiice  (diplomatic)  discloses  the  following: 
positions  assumed  at  various  times  by  the  authorities  of  tiie 
United  States  ( U.  S.,  vol.  2,  i)p.  26o,  \iSii,  3!)(5) : 

{a)  The  vessels  seized  in  ISSG  and  1887  were  seized  and 
condemnedon  the  ground  that  Berinj;"  Sea  was  aware  clanxum. 

(b)  Disavowinfi'  this  {iround,  the  claim  was  made  on  Sep- 
tember 17,  1890,  that  tlie  United  States  had  exclusive  Juris- 
diction over  100  miles  from  the  coast  line  of  the  United 
States  territory  in  Bering  Sea. 

(c)  Subsequently  on  the  14th  April,  1801,  the  United  States 
(Jovernnient  advanced  a  new  claim  that  they  had  i)roperty 
in,  and  a  right  of  protection  over,  fur  seals. 

The  citations  given  do  not,  ot"  course,  sustain  this 
iniputation. 

An  intimation  to  tlie  same  efl'ect,  though  in  tar  less 
objectionable  form,  was  made  before  tlie  Paris  Tri- 
bunal; and  we  content  ourselves  by  referring  to  the 
treatment  of  that  intimation  b}-  the  eminent  counsel 
who  there  rejn'esented  the  Tnited  States,  at  ])age  29 
cf  sYv/.  of  volume  [)  of  the  American  ])rint  of  the  jn'o- 
cc^edings  of  that  Tribunal. 

( )n  the  latter  part  of  the  iirst  paragraph  of  (2)  above 
quoted  we  make  this  comment: 

Notwithstanding  the  statement  impliedly  to  the 
contrary  there  made,  and  exj)ressly  made  at  i)ag^e  14, 
folio  It)  ("Particulars  of  claims  had  been  fornndated 
and  presented  to  the  Tnited  States  (Government"),  and 
at  ])age  lo,  folio  30  ("The  claims  actually  submitted 
by  (ireat  Britain  referred  to  in  the  notes  verbales"j. 
Great  Britain,  in  distinct  de])artur<'  from  her  own 
precedents  and  from  the  rules  of  international  law  in 
such  cases,  wlu're  one  nation  seeks  indemnity  from 
another  for  injury  to  persons  or  ])ro])erty,  never  caused 
the  claims  to  be  audited  or  formulated  in  any  maimer 
for  ])resentation  to  the  United  States,  and  never  pre- 
sented them. 

On  tlie  contrary  on  April  1 S,  1888,  as  appears  by  the 


record.  Her 
cated  to  Mr, 

Her  Majest 

lars  of  the  el 
scalers  seized 
tics  in  Bering 
.1  JKst  asse 
iritlioiit  invi'8 
wish  to  ascei 
would  be  disj 

The  dahi 
the  Paris  'J 
the  meantin 
(Jovernmen 
StMtcs,  (daii; 
(luestion,  a: 
them,  was  : 
attitude  of 
to  the  Hag'  ( 

On  the  c( 
respect  of  i 
(tl)taiued  wl 
.igainst  it  1 
presenting" 
wrong  was 
conceded  tl 
remain  in  a 
national  ai 
diction  of  1 
Herin<>'  Sea. 

The  greti 
•  liction;  an 
creating-  tli( 
liility  of  th 
ihe  seizure 
which  both 
terrupt  or 
nation  of  t 


INTRODUCTORY    STATEMENT. 

icconl,  Her  Majesty's  ambassador  formally  comnmni- 
cated  to  Mr.  Bayard  the  following'  (Rec,  p.  65)): 

Her  Mjkjesty's  Government  bave  just  received  the  particu- 
lars of  the  claims  for  compensation  on  acconnt  of  British 
scalers  seized  and  warned  off  by  the  United  States  authori- 
ties in  Bering  Sea. 

.1  Juxt  assessiiient  of  these  claims  appears  to  them  difficult 
iriihont  investigation  and  rerijication ;  and  they  therefore 
wish  to  ascertain  wliether  tlie  United  States  Government 
would  be  disposed  to  agree  to  a  mixed  commission,  etc. 

The  claims  were  not  presented  in  any  form  until 
tlic  Paris  Tribunal  came  together  in  1<S(^8;  and  in 
the  meantime  nej^otiations  were  })ending  between  the 
(iovernments  wherein  the  position  of  the  Ignited 
States,  (daiming-  jurisdiction  to  make  the  seizures  in 
{|uestion,  and  denying-  their  liability  for  luaking; 
them,  was  not  challenged  by  Great  l^ritain  as  the 
attitude  of  a  "wanton"  trespasser,  or  as  "an  insult 
to  the  dag  of  Great  Britain." 

On  the  contrary,  without  following  the  practice  in 
respect  of  such  alleged  injuries,  which  had  always 
(tl)tained  where  right  was  asserted  by  (me  and  wrong 
against  it  by  the  claiming  nation,  of  audituig  and 
presenting  the  claims,  the  question  of  right  and 
wrong  was  considered  so  doubtful  that  Great  Britain 
conceded  that  c(»mpensa,tion  to  British  sul)jects  should 
remain  in  abeyance  ))ending  the  settlement  by  inter- 
national arbitration  of  the  question  of  the  juris- 
diction of  the  United  States  to  protect  the  seals  in 
Hering  Sea. 

The  great  ([uestion  was  the  cpiestion  of  that  juris- 

•  liction;   and  so,  in  Article  VIII  (d'  the  treaty  of  l.SJ)2, 

•  •reating  tlie  Paris  Tribunal,  the  (piestion  of  the  lia- 
Itilityof  tlie  United  Stat(^-  to  make  compensation  for 
tlie  seiziu'es  was  treated  m  terms  as  "subordinate," 
which  both  countries  were  solicitous  "should  not  in- 
teniipt  or  hmger  delay  the  submission  and  determi- 
nation (d'  the  main  questions." 


!  t 


INTRODUCTORV    STATEMENT. 


It  is  submitted,  tlierefort',  that  there  is  ut)  warrant 
for  the  charge  tliat  the  United  States  have  failed  in 
any  duty  u})  to  tliis  time;  or  that  their  honor  or  good 
faith  can  be  impugned  from  any  standpoint,  when 
they  have  so  far  "failed  to  make  any  reparation  to 
Great  IWtain"  on  account  '"of  injuries  sustained  by 
persons  in  whose  behalf  Great  Britain  is  entitled  to 
claim  compensati<  >n." 

Up  to  this  time  neither  Great  Britain  nor  anyone 
has  been  able  to  ascertain  what  these  claims  are,  or 
whether  thev  arise  from  injuries  sustained  bv  such 
"pers(  ns."  Unlicpiidated  and  unascertained  as  they 
have  1  I 'en,  the  present  convention  itself  recognizes 
that  no  liability  accrued  until  the  decision  of  the 
Paris  Tribunal,  tor  such  "laims  are  distinctly  defined 
in  Article  I,  as  those  "arising-  by  virtue  of  the  treat} 
aforesaid,  the  award,  and  the  findings  of  the  s;«  " 
Tribunal  of  Arbitration"  (at  Paris). 

At  pag-e  20  of  the  British  argument,  folio  5,  is  the 
following: 

(3)  Tliey  (the  acts  of  the  United  States  in  seizing  vessels  in 
Bering  Sea)  constituted  an  insult  to  the  Jiag  of  Great  Britain, 
repented  from  time  to  time,  accompanied  by  the  seizure  and 
confiscation  of  vahxable  property,  in  the  fa^e  of  continued 
protests,  and  even  after  the  acts  and  declarations  of  the  rnited 
States  Government  had  given  an  implitd  assurance  to  the  con- 
trary. 

In  other  places  in  the  oi)])osing-  argument  compen- 
sation is  claimed  from  the  United  States  under  the 
convention  and  before  this  Gommission  for  Great 
Britain  "in  her  own  behalf,"  distinguishing-  this  as  a 
national  claim  in  a  different  sense  from  those  made 
bv  her  in  behalf  of  "})ersons"  within  her  j)rotection. 
(t'ol.  10,  p.  18;  fol.  50,  p.  13.) 

The  counsel  of  the  United  States  have  but  two 
observations  to  make  on  the  above-quoted  paragraph 
in  connection  with  the  context: 


INTRODUCTORY    STATEMENT. 

(<i)  In  all  the  history  of  that  great  nation  the  flag 

(Jieat  Britain,  respected  throughout  the  world  for 
lie  power  behind  it,  and  more  respected  by  .strong- 
jiitinns  of  all  civilizations  for  what  it  re})resents 
Isides  the  force  of  arms,  has  never  been  insulted 
litli  inii)unity;  and  never  before  in  her  history  has 

been  suggested  by  her,  nuich  less  to  her,  that  the 

lincnds  for  such  an  insult  could  be  arbitrated  or 

'fcrred,  or  that  a  money  compensation  for  the  act, 

Issi'ssed  by  referees  of  whatever  dignity,  would  be 

M'cived  as  satisfaction. 

The  irrelevancy  of  the  statement  in  its  bearing  on 
|n'  ([uestion  of  damages  will  l)e  considered  later  on. 

(h)  Tha  charge  that  the  United  States  had  been 
[uihy  of  a  breach  of  faith  that  is  here  made  was 
It'ver  intimated  in  the  diplomatic  corres])ondence 
[('tween  the  Governments.  Promptly  on  learning 
liiit  a  misunderstanding  was  claimed  on  the  })art  of 
[lev  Majesty's  rej)resentative  on  the  subject  of  sei- 
|invs,  Mr.  Bayard,  on  August  13,  1887,  c(>rrected 
ic  misunderstanding,  if  there  was  one,  and  made 
Ills  statement  in  that  letter,  which  is  fully  justified 
)y  an  examination  of  tliM  correspondence  (Rec,  81): 

I  (;aii  discover  no  gro'ind  whatever  for  the  assumption  by 
Majesty's  Government  that  it  (his  letter  of  February  3, 
|S87)  contained  assurances  (quoting  from  the  letter  of  the 
Iritisli  ambassador)  "that  pending  the  conclusion  of  dis- 
Inssions  between  the  two  Governments  on  general  questions 
Jivolved,  no  further  seizures  would  be  made  by  order  of  the 
piiited  States  Government." 

On  page  1,  folio  5,  appe.ars  this  statement: 

(i)  Until  the  year  188G  the  Unii  .d  States  Government  by 
ko  positive  act  sought  to  exercise  auy  exclusive  jurisdiction 
fyor  the  waters  of  Bering  Sea  beyond  the  usual  territorial 
iiiiit;  nor  did  they  by  any  active  interference  intimate  to 
ireat  Britain  or  to  other  foreign  powers  their  intention  to 
klaiiu  special  or  exclusive  authority  to  prevent  the  capture 
M'  fur  seals  in  Bering  Sea  outside  of  such  limit. 


I    i     !  I 


10 


INTRODUCTORY    STATEMENT. 


The  ret'erence  to  the  re(;ord  opposite  this  paragrajil 
does  not  sustain  it.  The  reference  is  to  tlie  statenieii 
of  the  Jiritish  ease  before  the  Paris  Tribunal,  and 
entitled,  "Outline  of  Arg-ument." 

It  appears  by  this  record,  on  the  evidence  jjut  ii 
by  Her  ^fajesty's  Government,  that  the  first  ship  t| 
enji'ag-e  in  pehig'ic  sealing  was  an  American  vessel 
that  went  into  the  sea  in  1S84.  It  was  not  claimel 
before  the  Paris  Tribunal  that  any  l^ritish  shi})  wiij 
in  the  sea  before  that  year.  L 

It  is  not  pretended  by  (ireat  l^ritain  that  there  waJ 
any  assertion  by  that  nation  or  her  subjects  of  tlif 
right  to  take  seals  in  leering  8ea,  as  contested  hi 
the  United  States,  before  188");  and  it  a])pears  thai 
the  assertion  of  the  right  by  Cxreat  Britain,  or  l)y  hej 
subjects,  was  not  Immght  to  the  attention  of  the  Unite! 
States  Government  or  its  officers  until  after  the  clos| 
of  the  season  of  1885.  I 

Sir  (yharles  Russell,  in  his  argument  at  Paris,  quotej 
the  statement  of  Secretary  lilaine  as  follows,  froiJ 
his  dispatch  on  the  subject  of  British  sealing,  dateu 
Jaiuiarv  22,  181)0,  where  Ik'  says: 

Whence  did  tlie  ships  of  Canada  derive  the  right  to  do  in 
188(5  that  which  they  had  refrained  from  doing  for  more  thaij 
ninety  years?  | 

In  all  fairness  to  both  nations,  after  all  issues  of  facj 
have  been  inxcstiiiated  and  resolv(Ml  bv  the  Paris 
Tribunal,  it  should  be  stated  that  fnnn  the  date  ol 
ac(piirement  of  Alaska  in  18()7  until, by  reason  of  wliaj 
took  place,  in  the  year  1885  the  question  of  ])elagic 
sealing  or  the  jurisdiction  of  the  United  States  in  tlie 
])remises  was  not  asserted  against  Great  Britain,  for  the 
simp''>  reason  that  the  latter  Government  oy  its  subj 
jects  had  not  challenged  tliat  jurisdiction  or  interfered 
with  the  exclusive  control  by  the  United  States  of  seal 
fishing,  as  claimed  in  Bering  Sea,  at  Paris.  The  jurisj 
diction  was  asserted  as  soon  as  substantialh'  infrinyedl 


|(  )\ving  to  til 
lllcd  in  thetre 
Ic  United  Stt 
Itiial  (piestion 
Ir  losses  to  1 
liportance  <mt 
it'tcd  int(>  vie> 
litvcrsy,  a  fev 
Ibject  of  prol 
jition's,  resultir 
kiiiposed  of  j 
laming,  to  nii 
j)on  (luestion; 
fcse  as  subjec 

With  the  g] 

s|Mtsed  of  at 

jhonisoeve''  tl 

liat  the  few  cl 

Itnsidered  her 

ruous  dignity 

lias  schemed  1 
lie  sea  by  the 

true,  but  th 
Sritain.  The> 
lie  Tnited  St 
If  the  suliject! 

Confusing  1 
Issiimed  that  a 
itates  in  Ber: 
If  its  own  shi 
British  subje( 
jignity  to  th 
iivsented  her 

1 1  hi  w fully   b< 

iiierican  citi 
[iicat  Britain 
Ictiial  British 


INTRODUCTORY    STATEMENT. 

( )\\  inji'  to  the  f^ravity  and  iiia<>nitii(le  of  wliat  is 
lied  ill  tlie  treaty  the  "Main  Controversy"  l)etween 
(■  ITiiitod  States  and  Great  Britain,  tlie  interna- 
)iijil  ([iiestioii  of  jurisdiction,  tlie  cdainis  involved 
r  losses  to  jiritisji  subjects  have  been  (••i\'en  an 
i])oi'taiice  out  of  all  ])roj)()rtion  to  their  siji'iiificance. 
iltt'd  into  view  by  the  sii|»reine  feature  f)f  the  con- 
>\crsy,  a  few  small  tisliin<>'  boats  have  been  the 
hjcct  of  jirolonj^ed  neji'otiation  between  two  <»'reat 
itioiis,  resulting-  in  the  organization  of  a  High  (Viurt, 
[(iiijtoscd  of  jurists  of  distinguished  position  and 
juiiing,  to  make  an  assessment  of  values  and  jias.s 
Mtii  (juestions,  invidving,  in  the  case  itself,  only 
CSC  as  subjects. 

With  the  great  (|uestion  taken  from  under  them, 

spdsed  of  at  Paris,  and  out  of  view,  it  will  seem  to 

lioiiisocve'"  this  record  comes,  and  who  masters  it, 

lilt  the  few  claims  and  their  sid)jects,  which  can  be 

Diisidcred  here  at  all,  have  l)een  given  a  most  incon- 

iiKiiis dignity;  and,  too,  from  the  outside  stand[)oint, 

li;is  seemed  that  great  fleets  have  been  driven  from 

('  sea  by  the  United  States  troin  year  to  year.     This 

true,  but  they  have  not  been  the  fleets  of  Great 

Britain.     They  have  been  tne  vessels  of  citizens  of 

lie  riiited  States,  in  the  proportion  of  loss  to  that 

If  tlie  subjects  of  (ireat  Uritain  as  a  thousand  to  one. 

('t)nfusing  this  distinction,    the    public    mind    has 

>siimed  that  all  the  results  of  the  action  of  the  United 

|tiit('s  in   Hering  Sea  (action  sul)stantially  in  respect 

its  cnvii  shipping  and  its  own  citizens)  fell  u})on 

British    subjects.      'J^his   also    has   g'iven  a  factitious 

ligiiity    1o    these    claims.       When    I'rom    the    claims 

resented  here   there    are    thrown   out  those  urged 

111  lawfully   because    of  their    actual    ownershij)    by 

iiiierican  citizens,  who  can  not   be   represented   b}^ 

[ireat  Britain  under  this  convention,  the  residuum  of 

Ictual  British  losses  will  be  found  small  imleed. 


11 


;  ( 


12 


SUMMARY    OF   LEADING    POSITIONS    IN    REPLY. 

It  is  obvious,  liowever,  tliat  tl.ve  sinallness  of  tlil 
amount  involved  in  nowise  detracts  from  tlie  im|Kil 
tance  of  the  international  ([Uestions. 


A  sense  of  their  professional  duty  to  the  ConuniJ 
sioners,  who  have  consented  to  add  to  the  exactiiil 
resj)onsil)ilities  oi'  the  liig-h  jdaces  they  hold  in  tlil 
judiciarv  of  their  respective  countries,  that  of  masteij 
in<''  and  dis})osin<4'  of  the  international  controversj 
embraced  in  this  enormous  record  and  its  adjuncts 
has  impelled  the  counsel  for  the  United  States  tl 
endeavor  to  aid  them  with  all  that  conscientiou 
research  and  analysis  on  the  law  and  the  facts  ca| 
afford. 

If,  in  the  result  of  this  purpose,  it  should  seeJ 
that  any  excuse  is  needed  for  the  space  taken  in  «^atlJ 
ering-  and  })resentini>"  the  evidence  under  the  seveni 
heads,  with  intelligible  and  orderly  references,  thai 
excuse  mav  be  at  once  found  bv  comijarino-  with  tin 
record,  in  any  one  instance,  the  statements  under  nm 
ca})tioii  whatever,  in  the  British  argument,  treating  (i 
the  facts. 


SUMMART  OF  THE  POSITIONS  OF  THE  UNITED  STATEfj 

IN  REPLY. 

At  this  place  we  submit  brief  synopses  or  head] 
notes  of  the  leading  positions  taken  in  the  argumeufl 
of  the  United  States,  hereafter  presented  at  length,  ill 
reply  to  the  juridical  positions  of  Great  Britain  on 
like  subjects. 


International  law  furnishes  the  standard  for  tlia 
interpretation  of  treaties  and  conventions  and  is  tlia 
law  of  this  Commission. 


SUMMARY    OF    LEADING    POSITIONS    IN    REPLY. 

riic  sc'()i)e  of  the  coiiveiitiou  in  this  case  is  (Unfilled 
Id  limited  by  tlie  laii<»ua<j^e  of  the  eoiiveiition  itself 
L(l  the  dociiineiits,  w  liieli,  by  its  terms,  are  made  a 
lit  of  it  by  ex))ress  reference  and  identification  in 
I  Ixtdy.  4'he  international  law  of  interpretation 
L)li('jil)le  here  neither  re([nires  nor  permits  any  refer- 
icc  to  extraneons  matter. 

TIk'  claims  referred  to  this  tVunmission  are  thns 
licliiuijieably  pointed  ont  and  definitely  described  in 
Ic  convention,  excei)t  only  as  to  ihe  amount  of  each 
liiiiii.  'J'he  names  of  the  "i)ersons"  for  whom,  imder 
picle  I,  Great  Hritain  can  claim  compensation  before 
[is  ('()mmissi(»n  are  as  unchangeably  ])ointed  out  by 
Ic  convention,  except  only  as  to  them,  so  named  as 
liiniMnts  by  the  convention,  the  United  States  are 
Irniitted,  and  that  nation  alone  is  permitted,  b}'  a 
icciiic  provision,  to   in(piire    into  their  identity,  in 

tense,  as  the  actual  owners  of  the  vessels  seized. 


18 


II. 


As  to  compensation,  the  United  States  hold  to  the 
linic  attitude  now  that  was  amiounced  by  their  coun- 
Ix'fore  the  Paris  Tribunal  and  has  been  consistently 
fjiintained  before  this  Hi<>h  Connnission,  namely,  that 
H'ir  liability  having"  been  fixed,  the  Government  de- 
ircs  to  pay  compensation  to  Great  liritain  on  account 

iill  persons  "in  whose  behalf  Great  Britain  is  en- 
|tl('(l  to  claim  compensation  from  the  United  States," 
)ul  to  })ay  that  compensation  at  the  earliest  time  when 
lie  pro])er  amount  can  be  ascertained. 

Moreover,  the  United  States  want  no  compromise 
11  tlie  amount  of  compensation  on  values,  and  the 
mount  of  the  injury  inflicted  by  them  for  which  they 
be  responsible  under  the  Paris  award.  They  depre- 
titc  any  such  method  of  arriving  at  an  award,  espe- 
Killy  under  this  convention,  Avhere  the  claim  of  each 
|\\  ner  is  to  be  found  separately. 


14 


SUMMARY    OF    LEADING    POSITIONS    IN    RKl'LY. 


SUMM 


It  ciin  not  l)Ut  (tc'i'ur  to  luiyoiu',  liowt'ver,  wlii'U  tlii 
ainoiints  aiv  compari'd  t'oi'  the  same  claims  made  iia 
tor  tlio  Paris  Tribunal  with  those  presented  at  the  hearj 
in*"'  in  \'i('toria,  and  a/^ain  when  both  are  comparef 
with  the  claims  now  })resente(l  in  the  argument,  tliii 
the  claimants  do  not  share  these  views  as  to  eompnj 
inise. 

The  change  of  trout  at  Victoria  on  the  measure 
recovery,  the  evidence  of  the  padding,  duj)licutiiij 
and  doubling  of  claims,  the  experience  of  other  coiiii 
jnissions  and  tribunals  with  like  claimants,  which  aii 
hereafter  referred  to,  tend  to  demonstrate  that  tlij 
amounts  are  presented  at  such  ])re})oster()us  tigurcj 
in  order — if  they  are  taken  as  a  basis  of  calcuhitidil 
at  all — I  hat  their  reduction  of  half  or  more  would  still 
give  a  result  out  of  all  [)roi)(^>rtion  to  the  truth. 

III. 

A  foreigner  ])ermanently  (h)miciled  in  the  Unite(| 
States  like  the  claimant  Cooper,  although  unnatuni!' 
ized,  owes  during  the  duration  of  his  domicile  allegi 
ance  U)  their  Government,  obedience  to  their  municij 
pal  laws,  and  especially  to  their  nati(tnal  assertion  <( 
what  is  variously  termed  dominion,  sovereignty,  o| 
jurisdiction. 

Non  constat  such  a  person  may  owe  original  allegi] 
ance  to  Great  liritain,  aiul  non  constat  lie  puts  hil 
ships  under  a  liritish  flag  and  a  British  registry',  he  ij 
still  a  resident  of  the  United  States,  and  so  amenabW 
to  their  laws  and  absoluteh'  bound  by  their  assertioii 
of  sovereignty. 

Whatever  (piestions  there  may  be  as  to  violatiod 
of  national  dignity,  of  the  flag,  and  the  ship  (wholhi 
questions  of  dignity  l)etween  nations),  in  such  casa 
he  is  not  a  ])erson  who  can  enter  any  municijial  courtJ 
much  less  an  international  commission  on  claims,  and 


r  up  that  he 
Biitiiiu  is  entit 

lilted  States" 
loiiiinou  with  o 
III  more  amena 
lets  against  tl 
luvs  of  their  i 
la\('  surtered. 

Aside  from  ( 
tiliility  of  th(^ 
ligh  seas,  sovei 
|('iTit<»ry  on  laii 
llmt  this  asserti 
|»t'ii!iti(>nal  digi 
]s  distinctly  d". 
i\'  llie   private 
Linic  nation,  ii: 
j-oiirt  before  h 
lit'  the   flag   ;u 
litlicr  nations 
I'durts  of  a(bni 
I'durt  ever  he) 
[liitc  ownershi) 
( )ii  the  coni 
lurcign   ships, 
niition,  passini; 
hmclusively  h 


A  citizen  of 
iir  domiciled,  i 
liritain,  is  still 
ll'nited  States 

(//)  Their  a 
liver  territory 

(h)  AUmmi 


.SUMMARY    OF    LKADINO    POSITIONS    IN    UEPLV. 


15 


■r  lip  that  lit'  is  n  person  "in  wliosc  IxOialt'  (ircat 
[Jritain  is  entitled  to  cljuni  coinpeiisiitioii  from  the 
lifed  States"  for  injuries  whicii  he  has  s'itt'ei-e<l  in 
Idiiiiiioii  with  other  civil  citizens  of"  the  Tnited  States, 


re  amenable  to  their  laws,  for  «l<)in<i'  the  sail 


|(i  mo 


lets   itiiJims 


le 


t  tl 


le 


])olu'y  ot  the  sovereignty  and  the 
liws  of  their  common  Government,  for  which  they 


a\(' 


■^idfered. 


iiii 


Aside  from  (piestions  having-  to  do  with  the  invio- 
lity  of  the  fia^i'  and  of  the  deck,  where,  on  tl 


10 


iiii'li  seas,  sovereignty  is  said  to  l)e  present  as  upon  its 

Icnitory  on  land,  there  is  no  doubt  by  the  authorities 

hat  this  assertion  in  its  extreniest  form  is  one  entirely 

it'iiatioiial  di<>nity,  in  resjtect  of  the  sovereiunty  itself, 

.  distinctly  (l'.stin<ji'uished  from  the  claim  on  fU'count 

'  the   private   ownership    of  a    shi[)    made   by    the 

iiiic  nation,  in  res[)ect  of  a  subject  or  citizen.     In  no 

iiirt  before  has  it  been  claime<l  that  the  immunity 


tt'  the    tlaii'  ;uid   of  the   deck  fr 


om   n 


udestation    bv 


itlier  nationvS  (m  the  lii»;h  sea.s  carried  with  it  in 
•oiuts  of  aibniralty  anywhere,  or  in  anv  international 
:'oiirt   ever 


held, 
h 


,  any  ex(dusive  presumption  of  j)ri- 


itc  ownership. 
Oil  the  contrary,  in  the  c<mrt.s  of  Eng-land  as  to 


oreign  slnps,  ana  ni  tlie  cour 


th 


l't8    of 


every  civi 


lized 


la 


•di 


tioii,  passing"  the  question  of  national  dignity,  it  is 
iclusively  held  that  nationality  follows  ounership. 


IV. 

A  citizen  of  the  United  States,  wherever  resident 
W  ilomiciled,  until  he  becomes  naturalized  in  Great 
QUirain,  is  still  bound  to  his  original  allegiance  to  the 
ir  111  ted  States  in  respect  of — 

{(i)  I'heir  assertion  of  jurisdiction  and  sovereignty 
|o\(i-  territory  or  property. 

{It)  xVll  nmnicipal  laws  having  an  exterritorial  effect 


<  i  J 


16 


SUMMARY    OF    LEADING    POSITIONS    IN    UEl'LY, 


SlIMN 


Tlic  rijilit  of  the  nntion  to  protect  ii  (loniicilc*!  ]»('i 
son,  even  in  tiiiu'  of  war,  imicli  Ic^ss  in  time  of  peace] 
has  nevci'  been  asserted   in  favor  of  sncli  person  a 
a}»ainst  his  nation  of  citizenship  foi'  the  consecinenccsl 
of  liis  viohition  of  the  hnv  of  liis  conntrv  in  time  u\ 
])oace,  or  his  ]»ositive   viohition  of  his  anejiiance  iul 
time  of  Avar. 

'^rhe  maintenance  of  tlie  ri;>lits  (►f  (h»micile  in  tlie  hi^ 
tory  of  international  law,  as  will  1     seen,  shows — 

(1)  Fre(inent  assertions  of  pre  ction  in  time  of 
])eace  a<>ainst  all  other  nations  c.Drpf  tlic  nnfioii  nf 
orifi'nini  (iHt'f/idHcc ;  and  in  the  apjilicalile  ])rincipk»s 
laid  (hnvn  by  the  anthorities  this  exception  will 
ill  ways  be  fonnd  in  terms. 

(2)  III  war  a  ])erson  domiciled  in  a  nentral  country 
will  be  protected  in  his  pro})erty  and  his  person,  even] 
as  against  his  own  belligerant  country,  always  pro- 
vided he  has  not  violated  the  law  of  his  orig-inal  alle- 
giance and  has  not  engaged  in  any  hostile  act  against 
his  country.  In  other  Avords,  t<^  be  protected  by  the 
Government  of  the  neutral  in  such  c  nditions,  it  nnist 
appear  that  he  has  maintained  the  status  of  the  Gov- 
ernment of  his  domicile  as  to  neutrfi 'h^-. 

By  these  well-settled  doctrines  of  in!  rnational  law, 
by  the  treaty  of  Washington,  the  V.u.-  -nvard,  and 
this  convention,  citizens  of  the  United  ISt:ites,  wherever 
domiciled  or  commorant,  are  not  peisons  "in  whose 
behalf  Great  Britain  is  entitled  to  claim  compensation 
from  the  United  States." 

r. 

The  law  of  ** compensation"  in  cases  of  this  kind  is] 
restitutio  in  iritegruni. 

By  the  P^nglish  and  American  law,  and  above  all,  I 
by  what  must  be  taken  in  this  tribunal  as  its  authority 
in  international  law,  in  cases  of  precise  analog-y  to] 


ins.  prospecti\ 
lowed  to  Gn 

111  any  case 
Vridfcd  the  vesi 
[iiHs  relating-  1 
|)t'  seizure  whe 
It  the  release  \n 
^n  intention  oi 
[lu'  property  t 
|ii;i'  season. 

The  theory 
MU'li  ca  "s  thai 
liiive  sup})lied 
|iiiu'  of  seizui 
l)roj)erty  se'ze 
liuasure  of  coi 

lu  the  case 
[lovernment,  j 
fiiiise  of  them 
llie  nature  of  i 
fcaling  .season 
111"'  here  are  ii 
I'lkc  those  apj] 
;-iilly,  howeve 
facts  sustain  a 
^V}lnung•s. 


Claims  for 

|iiiti<»nal  claim 

[iz,  such  as  m 

liiviolabilitv  o 

llic  respect  di 

111(1  the  like,  i 

ivcreig'n's  tei 

uder  interna 

lent  no  natio 

B  s 2 


HUMMARY    OF    LEADlNU    POSITIONS    IN    REPLY. 


17 


ii>.  |nos|)i'ctive  i)rofits  uiul  loss  of  catch  cmi  not  be 
Iluwi'd  to  Givat  Ih'itain  bv  tliis  Coniiuission: 

III  any  case  {(i)  wliere  tlic  United  States  appro- 
ijriiifcd  the  vessel  by  seizure,  or  by  ultimate  proceed- 
ii;is  relating-  back  to  the  seizure;  or  (/>)  in  any  case 
if  s(;izure  where  the  United  States  ordered  a  release, 
t  tilt'  release  xsas  not  accepted,  or  if  the  facts  disclosed 
11  iiitenti<jn  on  the  part  of  the  claimants  to  abando:i 
lie  pro))erty  to  the  United  States  before  the  follow- 
iii;'  season. 

Tlie  theory  and  j)re8umj)tion  must  be  applied  in  all 
lull  (•!!  s  that  the  claimants  had  the  means  and  could 
liive  supplied  the  place  of  the  jn'oijerty  seized  at  the 
me  of  seizure.  In  other  words,  the  value  of  the 
)r(iperty  se'zed  at  the  time  of  seizure  is  the  only 
iicasure  of  compensation. 

In  the  case  of  Warninjis  made  by  the  United  States 
iovernment,  and  actual  departure  from  the  sea  ba- 
il use  of  them,  a  liberal  allowance  nuist  be  made  in 
111'  nature  of  the  charter  value  for  the  balance  of  the 
ciilinj^'  season  in  Bering  Sea  only.  The  rules  api)ly- 
ii;i  here  are  in  principle  like  those  of  demurrage,  or 
ike  those  applying-  in  cases  of  ])artial  lo.ss.  Practi- 
ally,  however,  there  are  but  two  cases  where  the 
acts  sustain  any  considerable  claim  as  resulting  from 


^Vaniing-s. 


VI. 


claims  for  national  injuries,  distinguished  from 
liati(»ual  claims  made  in  behalf  of  subjects  or  citizens, 
V'n,  such  as  may  arise  from  acts  in  derogation  of  the 
ln\  iolability  of  the  flag,  the  dignity  of  the  sovereign, 
[he  respect  due  to  the  jurisdiction  of  the  sovereign, 
[111(1  the  like,  committed  on  the  high  seas,  or  on  that 
f(t\('reign's  temtory,  are  not  before  this  Commission. 
L'uder  international  law  and  by  international  prece- 
lint  no  nation  has  yet  claimed  to  recover  damages 
B  s 2 


I  if 


u 


SUMMARY    OF    LEADING    POSITIONS    IN    REPLY. 

for  sucli  acts,  for  distribution  jun< >]!(»•  claimnnts,  iiorliasj 
any  nation  ever  referred  such  (questions  to  arbitratioiij 
or  coinmissioners  for  a  dania^ivs  assessment.     j\[ore- 
over,  claims  for   "smart  money"  or  for  satisfactioii| 
of  national  affronts,  if  any  occurred,  are  not   claims 
of  "pers(>ns"  within  Article  I  of  this  conventi<m,  "in| 
whose  behalf  Great  Britain  is  entitled  to  claim  com- 
pensation from  the  United  States." 

VII. 

There  is  no  warrant  in  international  law  for  the  al- 
lowance of  ])unitory  oi'  ^•iu(lictive  damaji'es  as  betweeiil 
uati(»u  and  nation.  There  is  no  authoritative  jud<>inentj 
in  the  courts  of  either  country  which  would  authorize! 
a  findin|>'  that  the  I  nited  States  on  the  facts  in  this 
record  have  been  g'uilty  of  "  wanton  injury,"  bad! 
motive,  or  malice,  and  the  authorities  cited  in  the| 
liritish  arfi'ument  under  these  heads  are  not  in  point. 


VIII. 

The  claims  that  are  ])resented,  which  can  l)e  lieardj 
within  the  terms  of  the  convention,  tor  the  m<istpart,[ 
have  been  so  crossly  exa_i><»erated  that  they  are  ])re- 
postero'i.s  and  extortionate,  and  wherever  such  claimsj 
have  1)een  made  willfully  or  corruptly  extrava_<iant  thef 
claimants  are  entitled  to  the  lowest  estimate  of  com-| 
pensation  found  within  the  covers  of  the  record. 


SCOPE    AND 


IX. 

By  the  rules  of  the  conuMon  law  of  the  two  countriesj 
and  of  international  law,  interest,  as  claimed,  can  uetj 
be  allowed  in  the  class  of  cases  presented  to  tliif<| 
Tribunal. 


iihlicists    adi 


THE    INTERNATIONAL   LAW    APPLICABLE. 


19 


X. 

Tlu'  costs  ill  the  Saywanl  Case  can  not  be  allowed, 

KMiuiso  (d)  they  were  cont'essedly  (lisbiirseineiits  by 
[iiviit    l>ritaiii   iiu'iirred  by  that  Govonunciit  in  the 

iljiistinent  of"  an  international  difficnlty;  (//)  they  are 
l'\|)r('ssly  excluded  from  the  Convention  in  terms  by 
|ts  ivt'erenee   to    the   claims   ret'erretl   as  lh«>se   only 

iiihraced  and  named  in  the  award  of  the  Paris  Tri- 

Minal.  wliich  award  excludes  this  claim,  as  do  the  Pro- 
icciliuus  of  the  Paris  Tribunal;  (c)  the  interpolation  of 
Hie  Icrin  "costs  in  the  Sayward  Case"  in  the  schedule 

irtiiclii'd  to  the  convention  can  not  control,  modify, 
111'  cidarji'e  the  express  provisions  of  the  convention, 
kliich  exclude  it;  and  (d)  it  is  not  a  claim  embraced 
kvitliiu  Article  I,  namely,  "all  claims  on  account  of 
liijiuMcs  sustained  iiy  persons  in  whose  behalf  Great 
Britain  is  entitled  to  claim  compensation,"  or  one  of 

ic  "additional  c'aims  specified  in  the  fifth  para<2,ra])h 

ft'  die  i»reainble  hereto." 


INTBRNATIOITAL  LAW  APPLICABLE. 


SCOPE    AND    INTEKPnETATlON    OK   THE    CONVENTION. 

ill  this  controversy  all  (piestions  must  be  con.sid- 
Ti'd,  wei}4'lied,  and  <lecidi'd  by  international  law. 

Ill  pursuing'  their  ar<i'unient  niider  this  convention 
lie  Tnited  States  do  not  find  it  necessary,  in  the  ascer- 
aiiinient  of  what  principles  of  that  law  are  applicable 
1(11',  to  resort  to  anv  sources  of  authority  except 
iviiries  and  jud<>i'nients  of  international  courts,  which 
lie  universally  held  to  be  of  the  most  biiidinj^-  force, 
iikI  jud<j>'meiits  and  ojiinions  of  eminent  jurists  and 
•ulilicists    admitted    to    be    authoiJtative    by  Great 


THE    INTERNATIONAL   LAW   APPLICABLE. 

For  other  sources  of  light,  from  the  cojjious  learn- 
ing- of  the  world,  reference  is  made,  without  any  futurel 
recurrence  to  them,  to  the  collection  of  authorities! 
found  in  the  exhaustive  argument  of  Mr.  Carter  beforel 
the  Paris  Tribunal,  American  print,  vol.  9,  pp.  1-lOJ 
et  seq. 

Whatever  international  law  maj'  be  in  its  broadestl 
definition,  we  have  it  for  application  here  in  positivel 
form.  Whatever  it  may  be  in  its  ajiplication  to  thel 
controversy  between  these  two  nations,  it  is  not,[ 
as  Burke  said  of  politics,  "The  science  of  circum-| 
stances." 

The  United  States  do  not  expect  here  a  different! 
application  of  the  rules  of  international  law  from  those  I 
which  have  been  applied  to  their  disadvantage  in  tlieiij 
past  history,  nor  will  they  seek  a  reversal  of  those! 
rules  which  they  have  heretofore  succe.ssfullv  invoked! 
to  their  advantage,  although  their  a})i)lication  to  the 
present  controversy  would  be  unfavorable  to  them. 

THE    LAW    APPLYING    TO    THE    CLAIMS. 


In  defining  what  is  meant  by  international  law  by! 
consent,  Phillimore  gives  the  following: 

(1)  The  consent  of  nations  is  evidenced  by  tlie  contents  of| 
treaties,  which,  for  this  as  well  as  for  other  reasons,  consti- 
tute a  most  important  part  of  international  law. 

(2)  The  consent  of  nations  is  also  evidenced  by  the  deci- 
sions of  the  prize  courts  and  the  tribunals  of  international! 
law  sitting  iu  each  country.    (See  I  Phillimore,  XLIX,  p.  46, 
and  id.,  p.  55,  LVII,  with  very  full  consideration  of  authori- 
ties from  Lord  Stowell  down — English  and  American.) 

Vattel  divides  the  authentic  sources  of  international 
law  into  voluntary,  conventional,  and  customary  laws. 
Wheaton  divides  the  voluntary  law  of  nations  into 
conventional  law  and  customary  law,  the  former  be- 
ing introduced  by  treaty,  and  the  latter  by  usage;! 
the  former  by  express  consent,  and  the  latter  by 


THE    INTERNATIONAL    LAW    APPLICABLE. 


21 


Elicit  consent  between  nations.     (Sir  Slierston  Baker's 
lliilleck  on  International  Law,  Vol.  I,  Sd' ed.,  p.  52.) 
See  Id.,  Vol.  I,  p.  59,  citing-  decision  of  mixed  com- 

liiiission: 

(ireater  weight  is  justly  attributable  to  the  Juilgraents  of 

kiiixc'd  tribunals,  appointed  by  the  joint  consent  of  tlie  several 

yitKtrs  between  which   they  are  to  decide,  than  to  those  of 

Mliiiiialty  courts  established  by,  and  dependent  in  some 

^noasure  on,  the  instructions  of  a  single  State. 

The  municipal  laws  of  particular  States  can  he 
\rfrrrc<l  to  only  as  partkuJav  admissions  of  general  prin- 
'■iplcs  (ujuinst  the  State  enactimj  them.  (Sir  Slierston 
Baker's  Halleck,  Vol.  I  p.  5!).) 

The  law  of  nations  is  absolutely  independent  of 
iimnicipal  laws.  (Opinion  of  arbitrators,  Papers  re- 
iMting  to  Treaty  of  Washington,  Vol.  4,  pp.  59-104; 
[iward,  id.,  p.  51.) 

And  Phillimore  sfiys  (Int.  Law,  Vol.  I,  sec.  55,  p. 
l)\)  of  the  ])ublic  documents  of  a  nation  that — 

These  furnish  decisive  evidence  against  any  State  which 
iftcrwards  departs  from  the  principles  which  it  has  thus 
Itlclitierately  invoked,  and  in  every  case  thus  clearly  recog- 
iii/.(>  the  fact  that  a  system  of  law  exists  which  ought  to 
regulate  and  control  the  international  relations  of  every 
Vital e.  (See  "Santa  Cruz,"  1  C  Rob.  Adni.,  Gl;  Poison,  Law 
lit'  Nations,  sec.  3;  I  Ilalleck,  p.  60.) 

There  can  be  no  better  summing-  up  from  all  the 
tmrhovities  on  this  subject  than  the  following: 

III  the  i>resent  imperfect  state  of  international  law,  which 
li'((i;;iiizos  the  obligatory  force  of  no  written  code,  and 
[ulviiowledges  no  permanent  Judicial  expositor  of  its  princi- 
Vlis.  \v(>  mnst  necessarily  resort  to  the  precedents  collected 
p'lniii  history,  the  oi)inions  of  jurisconsults,  and  the  decisions 
>/  tribunals,  in  order  to  ascertain  what  these  i)rinciples  are, 
|iii(l  to  determine  what  are  the  proper  rules  for  their  applica- 
Hoii.  Some  of  these  principles  and  rules  have  been  settled 
i'or  iijios,  and  have  the  force  of  positive  laws  which  no  one 
kill  now  venture  to  dis])nte  or  call  into  question.  (Sir  Sher- 
►tdii  i'.aker's  Halleck,  Vol.  I,  p.  59.) 


I  111 

1  i  u 


I  |n 


22  INTERrRETATION    AND    SCOPE    OF    THE    CONVENTION. 

Decisions  of  niuiii{'i])}il  i-ourts  are  ivceived  with  tht| 
same  limitations  as  above  ""iven  as  to  municij)al  laws; 
i.  e.,  thev  are   taken  aj^ainst  the  nation  of  deeisioiil 
(1  llalh'ck,  ]).  (Jl.) 

Of  text  wi'iters  the  same  rule.  The  works  (►f  textj 
writers,  when  there  is  a  g-eneral  concurrence  of  views! 
(1  Kent  Com.,  Vol.  1,  \).  Ill),  but  ])articularly  if  thei 
text  writers  and  authoritv  l)e  of  the  countrv  assertiii"! 
the  contrary  doctrine,  tlie  authority  should  be  re-| 
ceived.  (Sir  Sherston  Jiaker's  Ilalleck  on  I)>t.  Law, 
Vol.  I,  pp.  60-61.) 

In  the  lanyiiaoe  of  Fhillimore: 

If  the  autliovity  of  ZoiK'b,  of  Lee,  of  Mansfield,  and,  abovel 
all,  of  Stowell,  be  against  the  demand  of  Enj;laud;  if  Valiiil 
Doniat.  I'otiiier,  and  \'attel  beoi>i)osed  to  the  pretensions  otj 
France;  if  (Jrotius  and  Bynker.sboek  confnte  the  claim  of] 
Holland,  I'nti'endorf  that  of  iSwcden:  if  Heineccius,  Leibnitz, 
and  Wolff  array  themselves  against  Germany;  if  StoryJ 
Wheaton,  and  Kent  (iondemn  the  act  of  America,  it  can  uotl 
be  supposed  (excej)t,  indeed,  in  the  particular  epoch  of  al 
revolution,  when  all  regard  to  law  is  traniided  under  footl 
that  the  orfiumottum  <i<l  patriam  would  not  prevail;  at  all 
events,  it  can  not  be  doubted  that  it  <>U(flit  to  jtrevail,  audi 
should  the  country,  relyin;;  upon  scch  authority  be  couiT 
pelled  to  resort  to  arms  that  the  guilt  of  the  war  would  reistl 
upon  the  antagonist  relusingto  be  bound  by  it.  (Phillimorej 
Int.  Law,  A'ol.  I,  sec.  (iO;  Triquet  et  al.  c.  Bath,  3  Uurr.  1{.I 
pp.  14-80;  I  Ualleck,  p.  (Jl.) 

INTERI'HKTATION  AND  SCOl'E  OF  THE  CONVENTION. 

Before  proceeding'  to  a  c(»nsideration  of  the  treaty 
or  convention  under  discussion,  some  settled  rulc> 
re<»ar(lino-  the  inter[)retation  and  scojie  of  treaties  art 
here  cited. 

Re^ardinji'  treaties  like  tiiis  for  the  peaceful  settle- 
ment of  disputes.  Sir  Sherston  liaker's  Ilalleck  on 
International  Law  (3d  edition,  ^^tl.  I,  p.  467)  says: 

If  the  contending  parties  have  agreed  to  abide  by  the  de 
cision  of  these  referees,  they  are  bound  to  do  so,  except  in 


INTERP 

leases  where  the 
[fnicd  icUhin  ihcl 
(ill  t lie  agreemer 
\io  hr  decided  by 
Ihdiiiids  and  pret 
VmUtcd  to  thitti,  i 
Itlic  award  of  tli 
Iticaty,  in  1827,  > 
\u\'  the  Tnited  ^ 
•submitted  to  h 
lic{;;ude<l  as  biii 
[Jliitain,  and  wa 

The  nieani 

liisccrtained   b 

|n';isouin«i'  wh 

4iitutes  and  p 

I  Wheaton  Elei 

iiiul  ]).  S");');   I 

To  ii'O  outsi 

to  endeav( 

jiicns,  Liv.  II, 

1.  sec.  3!>,  p. 

Greanleaf  !• 

|:5L'l): 

Wiieii  parties 

hviiting  in  sucl 

any  uncertaint 

iiK'iit,  it  is  cone 

(if  the  parties, 

iiij;,  was  reduct 

\  idus  colloquix 

liU'claration  at 

as  it  would  ten 

Iditlcrent  contrs 

til  the  prejudii 

The  first  n 

It  is  not  alio 
pirtatiou,  for  ^ 
terms,  and  tlit 
tlu^re  can  be  n 
rally  preseute( 


INTERPRET ATION    AND    SCOPE    OF    THE    CONVENTION. 


23 


lcast!s  where  the  award  is  obtained  by  collusiou,  or  is  not  con- 
\tintil  within  the  limits  of  the  submission.  It  is  usual  to  specify, 
liii  tlie  agreement  to  arbitrate,  the  exact  questions  iriiich  arc 
]/{>  /;('  (leei(le<l  by  the  arbitrators,  antl  if  they  exceed  these  previse 
ihiiunds  and  pretend  to  decide  upon  other  points  than  those  sub- 
\mitlcd  to  them,  their  decision  is  in  no  respect  binding.  Thus, 
Itlu'  award  of  the  King  of  the  ^'ctlierhinds,  on  reference  by 
Iticiity,  in  1827,  of  tlie  question  of  the  lun'theastern  boundary 
if  the  Tnited  States,  not  being  a  decision  of  the  question 
•iiibuiitted  to  him,  but  a  projjosal  for  a  compromise,  was  not 
licj;;nde<l  as  binding  either  upon  the  Tnited  States  or  Great 
[jJiitain,  and  was  rejected  by  both.    *    *    * 

The  lueaiiino-  of  treaties  of  every  kind  is  to  be 
iiisccrtiiiued  by  the  same  rules  of  eonstruction  and 
niisonino-  which  we  Mi>})ly  to  the  interpretation  of 
stiitiites  and  private  contracts.  (I  Kent  Oom.,  p.  174; 
Wheaton  Elements  Int.  Law,  Pt.  Ill,  chap.  2,  sec.  17, 
|iiii(l  p.  Sof);  I  Halleck,  ]).  20G.) 

To  <)0  outside  of  the  treaty  in  search  of  conjectures 

lis  to  endeavor  to  elude  it.     (Vattel,  Le   Droit  des 

|(;.'ns,  Liv.  II,  (Ml.  XYIl,  sees.  2(J3-2{)8;  Halleck,  Vol. 

1.  sec.  .'Jll,  p.  2117.) 

(Jreanleiif  savs  (Greenleaf  on  Evidence,  Vol.  I,  }). 

|;]-_'i): 

Wiien  parties  have  deliberately  put  their  engagements  into 

hviiting  in  such  terms  as  imimrt  a  legal  obligation,  without 
any  uncertainty  as  to  the  object  or  extent  of  such  engage- 
iiii'iit.  it  is  conclusively  presunied  that  the  whole  engagement 
(ti  the  parties,  and  the  extent  and  manner  of  their  undertak- 

|iii};,  was  reduced  to  writing;  and  all  oral  testimony  of  a  pre- 
vious colloquinm  between  the  parties,  or  of  conversation  or 

I  doclaration  at  the  time  when  it  was  completed  or  afterwards, 
as  it  would  tend  in  many  instances  to  substitute  a  new  and 

[dillerent  contract  for  the  one  which  was  really  agreed  ui)0U, 
ti»  the  prejudice,  possibly,  of  one  of  the  parties,  is  rejected. 

'i'he  first  maxim  of  Vattel  is: 

it  is  not  allowable  to  interpret  what  has  no  need  of  int«r- 
inotation,  for  when  a  treaty  is  conceived  in  clear  and  precise 
toriiis,  and  the  sense  is  manifest,  and  leads  to  no  absurdity, 
tiicre  can  be  no  reason  for  refusing  the  sense  wdiich  is  natu- 
rally presented  and  manifest.    To  go  elsewhere  in  search  of 


f 


!  11 


:  i  it 
i.i 
■  i 

?  hi 

!     I 


! 


24  INTERPRETATION    AND    SCOPE    OF    THE    CONVENTION. 

conjectures  is  to  endeavor  to  elude  it.  ( Vattel,  Le  Droit  desl 
Gens,  Liv.  II,  Ch.  XVII,  sees.  263-298;  Halleck,  Vol.  I,  297.i 
The  whole  treaty  must  be  considered  togetlier,  and  anl 
interpretation  given  to  each  particular  expression  so  as  tol 
agree  with  the  tenor  of  the  whole  instrument.  (Vattel,f 
supra;  Halleck,  Vol.  I,  298.) 

Vattel  says: 

In  order  to  obviate  all  difWculty  it  is  necessary  that  thel 
arbitration  articles  should  precisely  specify  the  subject  inl 
dispute — the  demands  of  the  one,  the  objections  of  the  otberl 
*  *  *  if  then  the  sentence  be  confined  within  these  precisel 
grounds  the  disputants  must  ac(|uiesce  in  it.  (Chitty's  Vatf 
tel  (Phila.),  p.  277.) 

It  is  clear  that  the  scope  of  the  treaty  or  coiiventionj 
is  to  be  limited  strictly  to  the  conferring  powers  of| 
the  instrument. 

The  decision  by  arbitrators  must  be  disregarded  when  tbel 
tribunal  has  clearly  exceeded  the  powers  given  to  it  by  thel 
instrument  of  submission.  (Hall  on  International  Law,  4tlij 
Ed.,  p.  379.) 

There  bein<>'  no  obscurity'  or  ambio'uity  in  tliis  con- 
vention,  reference  to  tiotcs  verhdcs:  or  (li])loniatic  corre-l 
spondence,  or  any  otlier  extraneous  matter,  is  not! 
permitted,  to  enlarg-e  its  scojjc,  as  is  attempted  to  bej 
done  in  the  British  aro-mnent  regarding  tlie  claims  to| 
be  considered  under  it. 

If  there  were  obscurities  on  tlie  face  of  the  treaty 
itself,  the  rule  is  j)erfectly  well  settled  as  to  contracts] 
and  treaties  that  the  first  resource  for  enlightenment | 
nmst  1)0  to  read  all  the  })arts  of  the  treaty  or  con- 
tract together  for  a  solution  of  tlie  difhculty,  and  the] 
second,    to   search   tlie    contract    or    treaty   for  any] 
ri'fcn'iirc    to   extraneous    matters    which    may    give 
enlightenment. 

The  presumption  is  that  the  provisions  of  a  treaty  are! 
intended  to  be  harmonious,  and  nothing  short  of  clear  proofj 
of  intention  can  Justify  any  interpretation  of  a  single  i)ro- 
vision  which  brings  it  into  collision  with  the  undoubted  I 
intention  of  the  remainder.  (Hall  on  Int.  Law,  4th  Ed.,  | 
pp.  353-354,  and  see  p.  350.) 


INTERPRETATION    AND    SCOPE    OF    THE    CONVENTION. 


25 


111  tliis  Cfise  there  is  exjiress  retereiice  to  tlie  tiiid- 
|iiii;s  of  tact  of  the  Paris  Tribunal  as  disclosiiio-,  defiii- 
liiit:',  and  limiting-  the  claims  which  are  referred  to  the 
l('()iiimissi(mers.  Tlu»se  finding's  are  made  a  part  of 
Ithis  Convention.  (See  Sedgwick  Stat.  C()nst.,p.22i).) 
A  reference  in  a  statute  to  a  prior  statute,  a  document, 
lor  a  map  makes  it  part  of  the  statute.  (See  cases 
liited  l)y  Sedgwick.) 

It  ajjpears  by  this  record,  as  well  as  by  Protocol 
IXLI  (Paris  Ccmimission,  Vol.  I,  U.  S.,  p.  43).  that 
lller  Majesty's  Government  prepared  every  word  and 
lliiie  of  that  finding,  and  that  it  was  substituted  for 
Itlu'  proposed  finding  submitted  by  the  United  States. 

Article  IX  of  the  award  shows  the  same  thing. 
iTliiit  award  being  made,  by  a  settled  rule  of  construc- 
Itioii,  a  ])art  of  this  convention,  by  express  and  defini- 
Itivc  reference,  by  date  and  article,  in  the  third  i)re- 
Ijiiiihle  thereof,  we  find  that  the  claims  and  the  persons 
ill  whose  behalf  Great  Britain  may  claim  compensa- 
Itioii  before  this  commission  are  limited  by  Article  I, 
land  by  ever}-  subsefpient  article  referring  to  the 
Iclaiiiis.  "Each  claim,"  and  "on  account  of  anv  claim- 
lanr"  apjiear  throuidiout.  And  all  refer  back  to  Arti- 
jclc  I,  and  so  back  to  the  Award  and  Finding  of  facts 
Itnr  description  and  limitation  of  the  subjects  referred 
|t<)  the  Commission. 

This  being  so,  by  a  settled  rule  of  international 
[law,  a})plical)le  to  the  interpretation  of  treaties  as 
la^ainst  the  nation  [)resenting  the  draft  of  the  subject 
lot'  tills  reference,  the  construction,  in  case  of  dispute, 
Iniiist  be  taken  most  strongly  against  that  nation. 

Hugo  Grotius  lays  down  the  rule  that  "the  inter- 
Ipictation  must  be  made  against  the  party  which 
Irafted  the  conditions:  ^Ut  coi/fra  cniii  Jiiit  nitcrpreta- 
V'ln,  till}  romUtUmes  eloeatus  cst.^" 

And  Vattel  says:  i  ;     •- 

I  [ere  is  a  rule  which  cuts  short  all  chicanery :  If  he  who  could 
1111(1  sliouhl  express  himself  plainly  and  fully  has  not  done  so, 


\r-ll 


;  ! 


i  I 
i  ! 


26  INTERPRETATION    AND    SCOPK    OF    THE    CONVENTION. 

SO  much  the  worse  for  him;  he  can  not  be  permitteil  sub  I 
sequently  to  introduce  restrictions  which  he  lias  not  expressod.l 
It  is  the  maxim  of  Roman  law,  "An  obscure  contract  h.armsi 
those  in  whose  power  it  wiis  to  lay  down  the  law  more  clearly.'f 
The  equity  of  this  rule  is  self-evident;  its  necessity  is  not  less! 
obvious.  There  can  be  no  assured  convention,  no  lirm  and! 
solid  ('oncesKi<»!i,  if  they  can  be  rendered  vain  by  subseciueiitj 
limitations,  which  ought  to  have  been  announced  in  the  actl 
if  they  existed  in  the  intention  of  the  contracting  parties! 
(Pai)ers  relating  to  the  Treaty  of  Washington,  vol.  5,  p.  13,| 
Berlin  Arbitration.) 

By  a  parit}'  of  reasoiiiiio-  sueli  nation  can  not  enlargfl 
the  scope  of  the  draft. 

This  Commission  is  as  dearly  limited  l)y  the  sched-j 
ule  of  British  claims  before  the  Paris  "^rribunal,  aiidl 
these  specifically  and  with  exact  precision  describefl.l 
from  paj>e  to])a|neinchisiv('.  in  the  "Findin<)"  referrdi 
to  in  Article  I  and  the  pi'eamble  of  this  (!onvention,[ 
as  if  that  schednle  were  set  out  in  the  body  of  tlitj 
Convention. 

Article  1  refers  to  a  schedule  which  pur])orts  to  hel 
a  sunuiiary,  but  it  nlso  refers  in  teruis  to  the  Hndingj 
of  fact  for  the  full  and  detailed  statement  of  what  isj 
referred  to  the  Commission,  and  the  findin<>s  of  factj 
are,  we  repeat,  expressly  made  a  part  of  tlie  Conven- 
tion b\-  referrin<>'  back  to  the  )r<'auible,  where  tho8t| 
iindinii's  are  identified  with  as  nuicli  effect  as  if  eni-j 
bodied. 

The  authorities  iniite  in  dedarino-  that  the  ordinary] 
rule  of  interpretation  of  contracts  and  statutes  aj)plies 
to  the  interpretation  of  treaties.  The  rule  has  added! 
eni))hasis  when  the  internatifuial  couipact  is  entered! 
into  auiong-  nations  whose  (»r<j;anic  law  requires  tliej 
ratification  of  the  comj)act  by  more  than  one  brancbj 
of  the  Government. 

This  aspect  of  that  (piestion  was  exhaustively  dis-l 
cussed  l)y  arbitrators  and  by  counsel  in  the  Paris! 
Tribunal.     It  arose  out  of  the  jiroposed  finding  ot 


INTERPKETATION    AND    SCOPE    OF    TIJE    CONVENTION. 


27 


tiicts,  jiiid  tliMt  (liscussion  cxjiluius  tlie  ivasoii  wliy, 
miller  Article   \"III   of"  tlic  tre)it\'  of  Februsu'N-  2!l, 

tl 


ls:iL\  coiit'orriiiji'  ujxni  tlio  iirbitrators  ixnvcr  to  liiid 

l(|ii('stioii8  of  fact  iiiv(>lvi'(l  in  the  cliuius  of  the  one 
Hiition  }i<>ainst  the  other,  thev  avoided  fiiKhuji-  aiiv  fact 

Ifsscutially  iuvolvin<>'  a  cfnichisifni  of  h'ahihty. 

( )iie  (|iiestion  <H.scus.sed  and  avoided  in  the  fin<lin<i' 

I  was  vvlietlier  the  arbitrators  had  ])ower  uiuh'i'  tlie 
reference    of  Article  VIII   to  find    tliat    any  act   of 

Itlic  United  States  or  of  Great  Britain  was  "wrong-." 
Another  (juestion  discussed  was,  wliether  a  finding-  of 

I  tact  niiglit  cover  the  questicni  of  how   the  (juestion 
if  citizenshi])  would  affect  the  (juestion  of  liability. 
These  findings  were  all  avoided,  first,  because,  by 

Itlic  projjer  and  strict  construction  of  Article  \' 1 1 1,  the 
trionnal  had  no  ])owerto  find  facts  on  which  a  liability 
1)1'  an  esca])e  from  lia])ility  would  directly  follow;  and 
-iccond,  because  no  representative  of  the  United  States, 

I  without  the  cf)ncinTence  of  the  Senate,  could  by  con- 
sent enlarge  its  sc(»pe.  (See  colloquy — Sir  Charles 
iJusseH's  argument  for  Great  Britain,  U.  S.,  vol.  13, 

|]i|t.  M)-')6,  inclusive.) 

It  is  therefore  es})ecially  true  here  that  arbitrators, 

[or  (*(»nnnissioners,  always  limited  to  the  jxtwers  and 
to  the  sul))ects  in  express  terms  referred  to  them  by 


a  neat}'  or  convention,  have  n(»t  the  })ower  to  enhirg'e 
I  its  scope  or  by   interpretation  and   construction    to 
niak(^   what  is  known   in   domestic  jurisjjrudence  as 
judicial-made  law. 

The  construction  contended  for  in  the  argnuuetit  of 
('I'eat  liritain  is  a  menace  to  the  convention  itself. 

This  is  a  reference  of  sjiecific  claims,  and  in  this 
[r('sj)(.'ct  is  unlike  certain  claims  conventions,  and  is 
like  others. 

Under  the  claims  convention  between  the  two  coun- 
tries (»f  February  8,  1853  (Treaties  and  Conventions 


I  t 


28     INTERPRETATION  AND  SCOPE  OP  THE  ("ONVENTION. 

between  the  United  States  and  otlier  powers,  Ed. '89,1 
pp.  44r)-6),  tliere  was  referred  to  tlie  Commission  in| 
terms: 

Article  I.    *    *    *    All  claims  on  the  part  of  corpora ! 
tioiis,coinpanies,or  private  individuals,  citizens  of  the  rnitedj 
States,  upon  the  Government  of  Her  Jiritannic  Majesty,  andl 
all  claims  on  the  part  of  corporations,  companies,  or  private! 
individuals,  subjects  of   Her  Jiritannic  Majesty,  upon  the 
Government  of  the  United  States,  wliicli  may  hare  been  prel 
neuted  to  either  Oorcrnment  for  its  interposition  with  the  otherl 
since  the  siffuatiire  of  the  treaty  of  peave  and  friendship  con- 
eluded  between  the  I'nited  tStates  of  America  and  Orcat  Britain, 
at  Ghent,  on  the  2ith  of  December,  181S,  and  which  yet  remainedi 
unsettled,  as  well  as  any  other  snch  claims  which  may  be  pre 
sented  within  the  time  specijied  in  Article  III,  etc. 

It  lias  been  fVe([nently  held,  under  such  a  confer- 
ment of  power,  that  the  connnissioners  may  judge  of 
their  own  jurisdiction  on  the  question  of  citizenship;! 
but  it  is  e([ually  clear,  and  was  held  under  that  com- 
mission, that,  as  to  all  claims  which  had  not  been  ])i'e- 
sented  to  either  Government  since  the  treaty  of  1814,1 
or  which  were  not  ])resented  within  tiie  time  specified 
in  Article  III,  the  Commission  had  no  jurisdiction. 

By  the  treaty  of  Washington,  Article  XII,  a  com- 
mission was  created  to  wliich  was  referred: 

All  claims  on  the  part  of  corporations,  companies,  or  pri- 
vate indivi<luals,  citizens  of  the  United  States,  ujjou  the] 
Government  of  Iler  liiitannic  ]\ra.)Osty,  arising  out  of  acts 
committed  against  the  jiersons  or  property  of  citizens  of  the 
United  States  during  the  period  between  April  13, 18(51,  and 
April  9,  IHVui,  inclusive,  not  being  claims  growing  out  of  the 
acts  of  the  vessels  referred  to  in  Article  1  of  this  treaty 
(Alabama  Claims),  and  all  claims,  with  the  like  exception,  on 
the  part  of  cor])orations,  etc.,  subjects  of  Her  Britannic  Maj- 
esty, upon  the  Government  of  the  United  States,  arising  out] 
of  acts  committed  against  the  persons  or  i^roperty  of  sub- 
jects of  Her  Britannic  Majesty  during  the  same  i)eriod,  which  I 
may  have  been  presented  to  either  Government  for  the  inter- 
position of  the  other,  and  which  yet  remain  unsettled,  etc. 
(Id.,  p.  484.) 


INTERPB 


INTERPRETATION    AND    SCOPE    OF    THE    CONVENTION  29 

It  proceeds  like  the  Convention  of  lHr)3,  providin*^ 
'tor  any  other  such  chiinis  as  niav  l)e  presented" 
vithin  a  certain  time. 
On  the  general  reference,  the  jurisdiction  to  decide 
to  who  were  subjects  or  citizens  was  undoul)ted, 
)iit  on  the  specific  limitation  as  to  the  class  of  claims, 
11  tliat  they  must  have  arisen  between  April  13,  1S61, 
and  April  9,  1805,  and  in  that  they  must  not  be 
liiiiiis  orowinji:  out  of  the  acts  of  the  vessels  referred 
(I  ill  Article  1,  it  is  clear  that  there  could  be  no  juris- 
diction Avhatever  in  the  commission. 

Like  conventions  with  similar  provisions  as  to  citi- 

ciiship  were  entered  into  by  the  United  States  with 

•Vance   January  15,    1880;    with    Spain    February 

1-12,  1871;   with  Mexico  July  4,  1868;   and  with 

;ieat  Britain  July  12,  1822  (Id.,  pp.  356,  418,  700, 

lil'io),  for  the  })urpo8e  of  ascertaining  and  determin- 

tii;^-  the  amount  of  indemnification  due  to  the  citizens 

bf  the  United  States  under  the  decisif)n  of  the  Em- 

iicror  of  Russia  (referred  to  in  the  opposinjr  argument). 

Articles  II  and  III  of  that  treaty  ])rovided  for  a 

iiH'tliod  of  ascertainment  of  the  average  value  of  cer- 

liiiu  property,  and  having   ascertained   that,  it  was 

indriiled  that  the  Secretary  of  State  should  furnish 

Ik'  Commissioners  «  list  of  this  and  other  private  prop- 

[■d  11  for  which  the  citizens  of  the  United  States  claimed 

^ii(lriiii)iJication  under  the  award  of  the  liussian  Emperor, 

lu'icby  limiting  the  jurisdiction  of  the  Connnissioners 

))\'  a  specific  list.     (Id.,  p.  420.) 

The  history  of  the  Alabama  treaty  and  arbitration 
|s  especially  instructive  in  this  connection,  because  of 
hroad  conferment  of  jurisdiction  and  its  bearing 
|(>n  the  contention  of  Great  Britain  here  that  that 
G()\"ernment  may  present  a  national  claim  as  distin- 
guished from  those  presented  on  account  of  its  sub- 
-M'ts.     (Id.,  p.  478.) 


30  INTi:riI'KETATION    AND    SCOPE    OF    THH    CONVENTION. 

Artic'U's  I,  III,  jiiid  X  ciiihriU'i'  the  coiitcrmeiit  nil 
jurisdiction  upon  the  in'l)itriitors,  and  so  inucli  of  tlu'sil 
articles  as  is  nocossarv  to  cover  the  point  we  suhniit.j 
(Id.,  pp.  4711,  481--i.y 

AuTicLH  I.  Whereas  ditleroiKu's  have  arisen  between  thel 
tloverninent  of  the  United  States  and  the  (lovernnuMit  ofl 
Her  Britannic  iMajcsty,  and  still  exist,  f>ro\ving  out  of  tliej 
acts  coininitted  by  tlie  several  vessels,  wliicii  iuive  j;iven  rise| 
to  ///('  clditns  jiiiu'ricdili/  ktioini  as  the  '•'■Alahttma  CUdmny 

And  whereas  her  I'lritainiic  Majesty  has  authorized  lieil 
llh^\\  Coniniissjoners  and  plenipotentiaries  to  ex])ress,  in  a! 
friendly  spirit,  the  re{>ret  felt  by  Her  Majesty's  (loverninentl 
for  the  escape,  uiuler  whatever  circumstances,  of  the  AU(\ 
hdiiui  and  other  vessels  from  I'ritish  ports: 

Now,  in  order  to  remove  and  adjust  all  complaints  audi 
claims  on  the  part  of  the  United  States,  and  to  provide  foil 
the  speedy  settlement  of  such  claims  which  are  not  adnuttedl 
by  Her  Uritanidc  Majesty's  (jovernment,  the  high  contractf 
ing  parties  agree  that  all  the  said  claims  (poirinj/  oat  of  acUl 
vommitti'd  hy  the  aforesaid  vessels,  and  f/eiieriealli/  hioa-n  as  thi\ 
'■^Alahaiua  (Jlaims,"'  shall  he  referred  to  a  tribunal  of  arbitral 
tion  to  be  composed  of  five  arl)itrators,  to  be  apiminted  iiil 
the  following  manner,  that  is  to  say  :  One  sliall  be  named  byl 
the  President  o'ihe  UintedStates;  ouesluill  be  named  by  Her 
JU'itannic  Majesty;  His  ^Majesty  the  King  of  Italy  shall  bej 
retpiested  lo  iiiiiut  one;  the  President  of  the  Swiss  (Confed- 
eration shall  V  >  '  equested  to  name  one,  and  His  Majesty  tlie| 
Emperor  of  iii^izil  shall  be  recjuested  to  name  one. 

*  «  #  *  # 

AiJTiCLK  VIII.     *     *     *     The  said  tribunal  shall  firstl 
deternune  as  to  eacdi  vessel  separately  whether  Great  Britain] 
has,  by  any  act  or  omission,  failed  to  fulHll  any  of  the  duties 
set  forth  in  the  foregoing  three  rules,  or  recognized  by  thel 
principles  of  international  law  not  inconsistent  with  snch] 
rules,  and  shall  certify  such  fact  as  to  each  of  the  said  ves- 
sels.    In  case  the  tribunal  find  that  Great  Britain  has  failed! 
to  fulfill  any  duty  or  duties  as  aforesaid,  it  may,  if  it  think 
jiroper,  proceed  to  award  a  sum  in  gross  to  be  paid  by  Great 
Britain  to  the  United  States  for  all  the  claims  referred  to| 
it.    *    *    * 

Article  X.  In  case  the  tribunal  finds  that  Great  Britain! 
has  failed  to  fulfill  any  duty  or  duties  as  aforesaid,  and  does  I 
not  award  a  sum  in  gross,  the  high  contracting  parties  agree 
that  a  board  of  assessors  shall  be  appointed  to  ascertain 
and  determine  what  claims  are  valid,  and  what  amount  or 


INTKHPI 


INTERPRKTATION    AND    SCOPE    OF    THK    CONVENTION.  .'H 

jiiiiioiiiits  shall  be  paid  by  (Ireat  Britain  totlie  United  States 
III  ii((!ount  of  tlie  liability  ansinjj  from  sncli  failure,  tm  to 
picit  rt'ssfl,  according  to  the  extent  of  such  lial)ility  as  decided 
lliy  I  lie  arbitrators.    *     *     • 

Tilt'  niendjers  thereof  shall  subscribe  a  solemn  declaration 
hat  tliey  will  impartially  and  carefully  examine  and  decide, 
to  lilt'  l»est  of  their  judgment  and  according  to  justice  and 
LM|iiity,  all  Muitters  submitted  to  them,  and  shall  forthwith 
jiKKccd,  under  such  r'll^s  and  regulations  as  they  shall  pre- 
sciibe,  to  the  investigation  of  the  claims  which  shall  be 
]in'sented  to  them  by  the  Government  of  the  United  States, 
kiml  shall  craminc  loul  decide  upon  them  in  such  order  and 
fiiiiinirr  as  thei/  nun/  think  proper.     *     •     * 

Tlir  deeittion  of  the  assesHors  shall  I)e  (jiven  upon  each  claim 
till  initiujf,  and  shall  be  signed  hi/  them  res/teetireli/. 

\(»\v,  in  or<k*r  t<>  (Ictcnnine  by  juridiciil  nsccrtiiiu- 
^iiciir  what  was  covcrt'd  by  tlio  plmtsc  "ociiuM-icjilly 
jl<ii(i\\u  as  the  AhthainaC 'hiiins,"  (thus  not  spccihcally 

Icsciiht'd  as  h(Mv)  ivtVnMK'c  was  had  l)y  the  tribunal 
Til  the  authoritative  and  eertitied  record  ot"  the  action 
iit  the  Joint  Ilij^'h  Commission  wliicli  framed  the 
treaty,  stating-  the  (juestions  to  be  sidjmitted  to  tlie 
Urliitrators. 

(This  will  be  found  in  A})i)endix  No.  1  hereto.)         Pagoieo. 
The  conferment  of  jurisdiction  was  certainly  broad 

•iKHiuh  to  cover  national  claims  in  the  case,  but 
hctm-c  the  hearing-s  of  the  (leneva  Arbitration  W€'re 

i]i('iied,  and  as  soon  as  the  American  case  was  \)re- 

ciifcd,  (jrreat  IWtain  intimated  the  |)ur])08e  of  tliat 
li<i\ernment  to  withdraw  from  the  arbitration,  on  the 

iidiiud  that  the  national  claims  were  not  properly 
luture  it;  and  then  by  the  assent  of  the  United  vStates 

lit-  ;u'l)itrati<m  was  saved  by  an  order  eliminating  the 
Jiatioiial  claims  of  the  United  States  from  the  proto- 
K'll.  (ireat  13ritain  holding  that  the  tribunal  had  no 

misdiction  in  the  premises.  (8ee  Protocols  I,  III 
hud  its  xVnnex,  V,  VI,  and  VII,  Papers   Relating-  to 

lit'  Treaty  of  Washington,  Vol.  4.)* 

Tho  British  counsel  insistetl,  too,  that  the  only  ships  which  appeared 
II  the  proceedings  of  tho   High  Joint  Comniissiou  were  the  Florida, 


'   1 


II 


32  INTERPRETATION    AND    SCOPE    OF    THE    CONVENTION. 

In  the  liglit  ol"  tlie  foreg'oing  authorities  and  this! 
history,  we  reproduce  here  the  question  propoundedj 
in  the  opposing-  brief  as  follows: 

The  first  questions,  therefore,  are,  What  are  the  claimS|l 
and  in  whose  behalf  is  Great  Britain  entitled  to  claim  comf 
pensation?    (Fol.  10,  p.  14.) 

The  answer  there  set  down  is  attempted  to  be  giveij 
from  the  diplomatic  correspondence  between  the  Gov- 
ernments,  including  notes   verhides,  extending    from] 
October  21,  1886,  down  to  1890,  and  from  the  domes- 
tic correspondence  between  tlie  claimants  and  the  I 
Government  of  the  Dominion  <»f  Canada — the  United! 
States  having  no  diplomatic  relations  with  that  Gov- 
ernment— and  which,  by  the  way,  was  never  brought | 
to  the  attention  of  the  United  States. 

After  considering  these  means  for  interpreting  a| 
convention  which  confessedly  contains  no  ambiguity, 
this  conclusion  is  reached  on  those  premises  in  the] 
British  argument  (p.  18): 

It  is  therefore  submitted  that  the  claims  referred  to  are  all  I 
the  claims  which  had  been  presented  and  urged  by  Great 
liritain  prior  to  the  date  of  the  convention;  and  further,  that 
Great  Britain  is  entitled  to  compensation  from  the  United 
States  0)1  her  oirn  behalf,  and  on  behalf  of  every  person  who| 
was  intfciested  in  any  of  the  vessels  in  question,  their  car- 
goes and  voyage,  either  as  owner,  master,  mate,  member  of  j 
the  crew,  or  otherwise. 

The  answer  of  the  United  States  to  tlie  question  | 
quoted  sttpr<(  is  this: 

The  "claims"  are  such  as  are  specifically  describedj 

Alabama,  (leori/ia,  and  Shiiiandoah,  and  that  these  became  "geneiically" 
known  as  the ''Alabama  claims.''  (See  Hriiish  argument,  Papers  relat- 
ing lo  the  Treaty  of  Wasliington,  Vol.  .3,  p.  260,  jmr.  3.)  And  later,  mil 
that  ground  the  counsel  for  (iroat  Uritain  declared  to  the  Arbitrators  j 
"in  the  most  exjilicit  manner"  (thus  suggesting  a  purpose  not  to  be 
boi :ud,  or  to  "withdraw,"  as  in  the  case  of  the  national  claims)  that 
claims  in  rcs]tectof  vessela  not  specified  in  the  case  of  tlie  United  States 
among  those  for  whoso  acts  the  United  States  asked  the  Tribunal  to  hold 
Great  Uritain.  are  not.  in  the  view  of  Her  M.ijesty's  OovernmeLt.  open  to 
arguun;nt  or  discussion  "  shur  they  can  not  prope'-Uj  he  taken  into  consid-\ 
craiion  hy  Ihc  Arhitratort  fnv  any  piirpoi'c  whatever."     (.Id.,  ]t.  '261.) 


INTERPl 

liis  referred  to 
jtidu  of  Februi 
IlKJiiilf  Great 
Itioii"  are  thos( 
jus  tlie  person 
liinlrss  and  ex( 

(a)  The  Ui 
If^uii  ill  any  ca; 
Ize'i  of  the  Un 
in  the  convem 

It  is  not  do 
idcceased  claii 
jclimn,  l)ut  in  s 
[as  to  rights  a 
Iwduld  have  st 

l''or  the  as 
il  '(iiiroission  c 
Kit'  l'\'l)ruarv  I 

(1)  Thecoi 
liidt  (lisckt.se  ■' 
liuission,  or  ho 
liiiiintelllgible 
Irct'crtMice  to  tl 
lilt  it. 

(2)  The  in 
1211,  isy2,  nan 
(tlif  cliiims  ref 

'iK'isiii"-"  unt 
lis  limited  to 
jtliat  arose  oil 

United  States 
jHcringSea  wi 
liiiatter  of  tha 

In  cnunectiou  ' 
Iniissioners  will  be 
laiid  the  Schedule- 
Ivciition  of  18!»6,  p 
lliii  iicpurate  comp 

15   S 3 


interpr?:tation  and  scope  of  the  convention. 

liis  ivForred  to  tlie  Connni.ssioii  in  and  by  the  eonven- 
Itioii  of"  February  .S.  1<S})6,  and  the  *'])er.sons  in  wliose 
|l)i  hidt'  Groat  Ih'itain  is  entitled  to  ehuni  compensa- 
Itidn"  are  tliose  specifically  named  in  that  convention 
liis  die  persons  who  presented  the  claims  at  Paris, 
linilcss  and  except — 

(d)  The  United  States  establish  that  another  j)er- 
Isoii  in  an}"  case  is  the  "actual"  owner  who  is  a  citi- 
Izc'i  of  the  United  States — an  exception  provided  for 
li'!  tiie  convention  itself. 

It  is  not  doubted  at  all  that  a  representative  of  a 

(Icccnsed  claimant  or  his  assionee  c<tuld  })resent  the 

chiiin,  ))ut  in  such  case  he  would  stand  in  all  res})ects 

[as  to  ri<j>-hts  and  disabilities  as  the  original  claimant 

h\(iuld  have  stood  imder  the  convention. 

I"'itr  the  ascertainment  of  the  jurisdiction  of  the 
•('((iiimission  over  the  subject-matter  the  Convention 
jof  F('l)ruary  H,  1(S!I6,  consists  of  three  documents:* 

(1)  The  convention  standing- detached,  which  does 
jimt  disclose  what  claims  are  referred  to  tlie  Com- 
jiiiission,  (tr  how  they  "nrise,"  or  what  they  are,  and  is 
Jiiiiiiitclligible  on  the  (picstion  of  jurisdiction  without 
jiftcii'uce  to  the  other  two  documents  which  are  named 
|in  it. 

(2)  The  treaty  sio-ned  at  Washino-ton  on  February 
|2li,  bS92,  named  in  it;  and  from  this  it  a})pears  that 
jtlic  claims  referred  to  the  Connnission  nuist  be  claims 
I  'arising'"  under  that  treaty;   that  is,  the  0(Mnniission 

limited  to  the  c(jnsiderati(m  of  claims  for  injuries 
Itliat  arose  out  of  the  assertion  of  the  claim  of   the 

rnited  States  to  jurisdictional  rights  in  the  waters  of 
Jl)(  ring  Sea  with  reference  to  seals,  which  is  thesubject- 

niatter  of  that  treaty. 

Ill  CDiiiiectiou  with  tlie  arjiiiiiieiit  on  construction  to  fsliow,  tb';  Coni- 
liiiissioner.s  will  lie  I'lirniahod  tlie  Treaty  of  1S!(2,  the  Findingp  of  Fact, 
laiid  tlic  Scliodiile — ji]i.  1  totIO,  iiicliisivo — therein  reierrod  to,  iinil  the(Vm- 
jviiiiion  <)1'  18!IH,  printed  together  in  convenient  form,  to  be  inferred  to 
|liii  icciinite  comparison  with  the  progress  of  the  argument. 
]{  s 3 


33 


34 


INTERPRETATION    AND    SCOPE    OF    THE    CONVENTION. 


:**•* 


Cleiirly,  here  is  a  limitation  wliieh  prevents  tliisi 
Commission  taking-  cognizance  of  any  claim  forinjuriesl 
connnitted  by  tlie  United  States  ofenerally,  as,  for  in- 
stance, on  a  merchant  ship  or  a  whaler  on  ihe  higlij 
seas,  which  would  have  been  cog-nizable  under  thej 
conventions  of  1853  and  1871. 

(3)  The  Award  and  the  Finding's  of  tlio  '•  ii'horail 
of  Arl)itration  are  found  specifically  refeiTed   to  in] 
this  convention  by  date,  and  especially  find  there  s})eci- 
fied  certahi  Finding^s  of  Fact;  and  so  tlie  "claims" 
must  "arise"  as  well  by  tlie  Award  and  the  Finuingsl 
of  Fact  as  by  the  Treaty;  and  in  this  award  and  find-j 
ings  of  fact  so  referred  to  as  defining*  what  this  Coni-j 
mission   shall    take    cognizance   of  (a   limitation   iul 
addition  to  that  which  we  have  seen  attached  by  tliej 
reference  to  tlie  Treaty  of  1892),  we  find  our  way  toj 
tlie  carefully  pre})ared  schedule  of  claims,  preparedf 
l)y  Great  Britain  and  sworn  to  by  the  claimants,  ofj 
which  this  Commission  is  given  jurisdiction  in   this 
in(iuiry. 

The  subject-matter  of  that  finding- — to  which  p\, 
r-^lative  words  and  repetitions  refer  throug-hout  tliei 
finding-,  article  by  article — is  stated  in  No.  1  of  tlicj 
Findings  of  P^u'ts,  and  is  this: 

These  several  searches  and  seizures,  whether  of  ships  orl 
goods,  iind  the  several  arrests  of  masters  and  crews,  respecT 
tively,  mentioned  in  the  schedule  to  the  British  case,  pp.  1\ 
to  60,  incliiHive,  etc. 

Thus,  tlu'oughout  crcrif  paraf/raph  of  the  findings,! 
hi  each  one  coiitiiiuiiig,  as  in  Finding  1.     Thus  '^-.  - 

1.  (d)  Questions  as  to  the  value  of  "the  said  vcsm  ■ 
or  their  contents,  or  either  of  them,  and  the  (piestiouk 
as  to  whether  the  vessels  mentioned  in  t'-.e  scheduleI 
to  the  British  case,  or  any  of  theiv,  ^vwe  wholly  or  iii| 
part  the  actual  ])ro])erty  of  (  ti/^ons.'"  '  ./. . 

(h)   It  being  understood  that  it   is   "open  to  thel 
United  States  to  raise  these  questions  or  any  of  tlieuil 


"ill  .>>se 
ioU'  ■)  .. 

IIX  (FP. 

uid  j)ou 


[ON. 


INTERPRETATION    AND   SCOPE    OF   THE   CONVENTION. 


35 


>  vents  this  I 
for  injuries  I 
,  as,  for  ill- 1 

liie  liij^lil 
niifler  tliej 

0       '.'t!     •'l.til 

rrud  to  iii| 
here  speci- 
e  "claims" 
e  Fiiulino'sl 
d  and  find- 
;  this  Coni-j 
Liitation    in  I 
led  by  the  I 
Diir  way  to! 
s,  prepared! 
aiinants,  ofj 
ion  in   tliis! 

wliich  .1] 
Lighont  the  I 
o.  1    of  thci 

r  of  ships  or! 
reAvs,  respecf 
}h  case,  jjj>.  JJ 

le  findiiiLrs,! 
Thus  \-.  -, 

SAID  ves^(  : 
le  (piestioui 

e  SCHEDULEJ 

rliolly  or  ill! 


if  they  think  tit  in  any  future  negotiations  as  to  the 
liability  of  the  United  States  Government  to  pay  the 
ivmounts  mentioned  in  the  schedule  to  the  british 
:ase." 

1.  That  the  "seizures  aforesaid,"  with  the  excep- 
Hoii  of  the  Patltjinder  seized  at  Neah  Bay,  were  made, 
3tc. 

3.  (a)  "Th't  the  said  several  searches  and  seizures 
^t'  vessels  were  made  by  public  armed  vessels  of  the 
['iiited  States,"  etc. 

{li)  "That  the  alleged  acts  or  otfenses  for  which 
AID  SEVERAL  Searches  and  seizures  were  made  were 
fn  cMcli  case  done  or  committed,"  etc. 

{<■)  "That  the  said  fines  and  imprisonments  were 

or  alleged  breaches  of  the  municipal  laws  of  the 

'iiited   States,"   etc.     (No  reference  to   "fines   and 

luiprisoiiments"  appears   anywhere  except  between 

•iiui'.s  1  to  60,  inclusive,  of  the  British  case.) 

I    No  reference  to  the  subject-matter. 

•"i      1'hat  the  district  courts  of  the  United  States 

'^'.•  h  any  proceedings  were  had  or  taken  for  the 

"!ii   >fse  of  condemning  any  vessel  seized  as   men- 

iioll'    I    ..A  THE  schedule  TO  THE  CASE  OF  GrEAT  BrIT- 

ux  (FP.  1  TO  (10,  inclusive)  had  all  the  jurisdictions 
iiiid  powers  of  courts  of  adinirnlty,  including  the  prize 
jurisdiction,"  etc. 

It  follows  that,  as  to  everything  except  "Additional 
'liiiuis,"  the  convention  of  1896  confers  jurisdiction 
[ipoii  the  Commissioners  for  three  ])ur})08es  only: 

(1 )  To  determine  the  amount  of  each  claim  appear- 
•  .'  hy  the  Ih'itish  schedule  (pp.  1  to  GO,  inclusive), 
Ik'  ainouiit  being  the  (piestion  on  which  the  finding 

[ii  express  terms  declined  to  pass. 

(2)  To  determine  as  to  the  liability  of  the  United 
>t;it('s  on  account  of  "each"  claim  of  each  person  for 
iijiirics,  as  set  down  in  the  liritish  schedule  (pj).  I  to 

li".  inclusive). 


i  n 


ill 


36 


INTERPRETATION    AND    SCOPE    OF    THE    CONVEXTION. 


INTERP 


(3)  Ti)  detei'iniiR'  tlic  (iiiestioii  of  liability  of  tliel 
United  States  wliieli  niio-ht  be  raised  on  account  ofl 
"wliether  the  vessels  mentioned  in  the  schedulei 
1  to  ()0,  inclusive),  or  any  of  them,  were  whollvl 
oi  1  part  the  actual  ])ro|)erty  of  citizens  of  the  Unitcdl 
States. 

Findinj>'  I,  last  i)ara,urai)h,  clearly  points  out  tliatl 
the  question  for  the  future  neji'otiations  of  the  Goveni-f 
ments  is  only  as  to  the  lial)ility  of  the  United  State.* 

"to    pay    THE    AMOUNTS    MENTIONED    IN    THE    SCHEDULE j 

TO  THE  niiiTiSH  CASE."  Article  3  of  the  Conventiorl 
provides  that  the  Connnissioners  shall  "hear"  onlylj 
questions  of  fact  ^^ not  foil iid  hi/  the  TrilnuiaJ  of  Arhk 
f ration,'^  and,  of  course,  to  ascertain  what  was  fouiidl 
and  what  is  therefore  excluded  from  the  co<^nizance| 
of  the  Commissioners,  can  only  be  ascertained  by 
the  findino's  themselves,  here  again,  referred  to  as  a| 
part  oi'  the  Convention,  as  has  been  seen. 

The  claims,  then,  referred  l>y  the  Convention,  aiJ 
no  part  of  them,  claims  of  vessels,  but  are  "clainis'l 
on  account  of  "persons,"  "arising"  by  the  treaty,! 
the  award,  and  the  tiudings  of  fact.  The  woiilj 
"arise,"  in  pointing  the  way  to  the  description  of  tlitj 
particular  claims  to  be  refei'red,  as  used  in  Article  ![ 
of  the  Convention,  is  clearly  used  in  the  sense  dif 
"having  their  originals,"  "presenting  themselves 
"ai)i)«'aring  from."* 

The  only  other  sense  in  which  the  term  can  l)fl 
used  in  connection  with  the  context  would  be  that  otl 
"cause"  or  "creation,"  which  would  give  to  the  seiij 
tence  the  meaning  that  the  claims  for  injuries  weitl 
caused  or  created  by  the  treaty,  the  award,  and  fiiidj 
ings,  which  of  course  would  be  absurd. 

^riiese  claims  are  of  persons,  as  ascertained  by  tlitl 
findings,  by  the  schedule  (pp.  1  to  60,  inclusive),  ani 
by  the  convention  of  ISiKJ. 


Article  I  o 

"claims  on  ac 

Article  III 

I  determine,    et 

'assess  the  co 

Itliereof." 

Article  VII 

Jinvarded  to  G 

\(((((»iint  of  any 

Turning  no 

presented  bef 

landing,  and  ( 

Cii.itnants,  the 

the  claim  of  ( 

1 1)0,  inclusive) 

The  details 

ijl'o  to  make  u 

is  used  for  il 

amounts  are 

pass  on  amou 

in  consequenc 

lot'  Article  III 

('liumant  and 


(1)  William  M 


*Latliaiii'8  .loliimon's  Dictionary,  "Arise,"  3;  Ciabb's  Synonyms,  pi 
291;  Webster.  "Arise,"  2. 


James  Do 


INTERPRETATION    AND    SCOPE    OF    THE    CONVENTION. 


37 


.Vrticle  I  of  the  Convention  names  the  claims  as 
claims  on  accoimt  of  injuries  sustained  hy  jio'so us. ^^ 
Article  III  provides  that  the  Cominissioner  shall 
lilctcrmine,    etc.,    in   respect    of   "each    claim,"    and 
"assess  the  compensation  if  any  to  be  paid  on  account 
Itliereof." 

Article  VIII  uses  this  lan<>-uag'e:  "The  amount 
liuvarded  to  Great  Britain  luider  this  Convention  on 
Idccoioit  of  any  claimant  shall  be  paid,"  etc. 

Turning  noAV  to  the  schedule  of  claims  of  ])ersons 
I  presented  before  the  Paris  "^rribunal,  found  by  the 
linding,  and  of  the  persons  who  presented  them  as 
cli.imants,  the  following  is  the  list  and  the  nature  of 
tlie  claim  of  each,  as  set  out  in  "schedule  (pp.  1  to 
(iO,  inclusive)  of  the  British  case." 

The  details  are  omitted  of  the  several  items  that 
I  go  t(^  make  up  the  claims,  excei)t  in  one  case,  which 
used  for  illustration  of  every  other  claim.  The 
amounts  are  omitted  because  the  findings  did  not 
pass  on  amounts,  and  their  assessment  was  referred, 
ill  consequence,  to  the  Commissioners  by  clause  sec(md 
of  Article  III  of  the  Convention. 


Claimant  and  sworn  owner. 

Sohooner. 

(1)  William  Munsie 

Carolena 

Items  of  claim  without 
amounts,  as  follows: 
"Value     of    vessel, 
value  of  outtit,  insur- 
ance, wages  of  crew, 
passage  of  crew,  pas- 
sage  of  mate,  per- 
sonal expenses,  legal 
expenses,  estimated 
seal  catch  for  1886,  to- 
tal claimed  by  owner 
with  interest  at  7  per 
cent  to  date  of  pay- 
ment." 

(li)  James  Douglas  Warren . 

Thornton 

Similar  details. 

3S 


INTERPRETATION    AND    SCOPE    OF    THE    CONVENTION. 


Claimant  aud  sworn  owner. 

(3)  Charles  Spring 

(4)  Charles  Spring.  ....... 

(5)  Thomas  H.  Cooper 

(6)  Thomas  H.  Cooper 

(7)  Thomas  H.  Cooper 

(8)  Thomas  H.  Cooper 

(9)  Gutmau  &  Frank,  Gut- 

mau  as  the  owner, 
Frank  as  equally  in- 
terested in  the  results 
of  the  sealing  voyige. 

(10)  James  J.  Gray 

(11)  George  Byrnes 

(12)  Charles  E.  Clark ^ 

Richard  Hall, 
William  e.  Goupel, 
Hans   Halgeson,  part- 
ners as  Hall,  Goupel 
&  Co. 

(13)  William  Muusie  

Frederick  Caruie 

(14)  Edgar  Crowe  Baker  . . 

Daniel  McLean 

Rosine  Gibson 

John  C.  Blackett 

(15)  Morris  Moss 

rl6)  Morris  Moss 

(17)  John  M.Taylor ^ 

Samuel  W.  Bucknam  .  > 
Bela  R.  Lawrence ) 

(18)  Charles  Spring 

(19)  Victor  -Tacobson 

(20)  William  INIunsie 


Schooner. 


Onward 

Favourite 

W.  P.  Sayward 

Grace 

Anna  Beck  . . . 

Dolphin 

Alfred  Adams . 


Ada  .... 
Triumph 


Juanita 


Pathfinder 


Triumph  No.  2. . 

Black  Diamond. 
Lily 


Similar  details. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 


Do. 

Do. 


Ariel 


Kate  

Minnie 

Pathfinder  (sec- 
ond claim). 


Do. 


Do. 


Do. 

Do. 
Do. 

Do. 

Do. 
Do. 
Do. 


INTERPl 
The  claims  c 

Claimants. 

David  Monroe  . 

Margoticli 

Hans  Guttorms 

Harry  Norman 

1  James  Ogilvie 

I  James  Black. . 

Warren 


INTERPRETATION   AND   SCOPE   OF   THE   CONVENTION.  39 

The  claims  of  persons  other  than  owners  are  scheduled  as  follows: 


Claimants. 

Nature  of  claim. 

David  Monroe 

Master  of  Onward . . 

Illegal  arrest  and  imprison- 
ment. 

Margotich    

Mate  of  Onward 

Do. 

Hans  Guttonnsen. 

Master  of  Thornton . 

Do. 

Harry  Norm  an 

]\Iate  of  Thornton . . . 

Do. 

James  Ogilvie 

Master  of  Carolena. 

Do. 

James  Black 

Mate  of  Carolena. . . 

Do. 

Warren 

Master  of  Dolphin . . 

Sufterings  and  losses;  navi- 
gating four  vessels  from 
Unalaska  to  Sitka. 

John  lleilly 

Mate  of  Dolphin 

Sufferings  and  losses. 

George  P.  Ferey. . . 

Master  of  Say  ward . . 

Do. 

A.  15.  Laiug 

Mate  of  Say  ward . . . 

Do. 

Louis  Olseu 

Master  Anna  Beck . . 

Do. 

3Iichael  Keefe 

Mate  Anna  Beck . . . 

Do. 

W.  Petit 

Master  of  Grace 

Do. 

C.  A.  Lundberg. . . 

Mate  of  Ada 

Do. 

Xo  claims  are  made  in  behalf  of  any  other  j)erson. 
In  schedule  1  to  GO  in  the  cases  of  ]\[orris  Mo.ss, 
"(twner"  of  the  Lilfj;  of  Byrnes,  owner  of  the  Tri- 
iiiiijili,  and  of  Bucknam,  as  owner  of  the  Ariel,  and  in 
those  cases  only,  claims  are  set  uj)  in  general  for  the 
(icw  and  hunters,  but  only  for  their  share  in  the  esti- 
iiKited  future  catch,  which,  in  the  details  of  each  of 
tlidse  claims,  made  by  the  owner,  is  inci idled  in  the 
claim  of  the  owner,  and  so  stated. 

Xot  only  are  there  no  other  persons  named  as 
cliiiinants,  but  there  are  no  other  claims  of  persons 
iiK'iitioned,  described,  or  suggested  in  the  schedule  of 
claims  referred  to  this  Commission,  or  in  any  paper 
ict'crred  to  or  connected  with  either  the  treaty,  the 
award,  the  findings  of  fact,  or  the  Convention.  Hence, 
there  is  no  jurisdiction  of  such  claims,  which  are  pre- 
sented for  the  first  time,  in  the  whole  history  of  the 
sul)ject,  in  the  British  argument. 


i  f 


40  CLAIMANTS BRITISH,  DOMICILED    IN    UNITED    STATES. 

A  "lumj)  sum"  for  })ersous  in  general  not  naniedl 
or  sugf^ested  in  the  scliediile — tor  crews  and  othersl 
whose  names  are  not  mentioned  anywhere — will  not! 
do  under  this  convention,  and  the  new  position  ofl 
Great  Britain  advanced  at  page  56  of  the  argument  I 
can  not  be  maintained. 

This  brings  us  to  the  following  proposition: 


There  are  two  classes  of  '■'■  pcrsons^^  amoufi  these  claim- 
ants,  who,  hij  the  settled  and  adjudicated  principles  oj\ 
international   laiv,  are   not    ^^ persons    in    ivhose   hehaln 
Great  Britain  is  entitled  to  claim  compensation  from  tk\ 
United  States r 

These  are: 

(1)  Original  subjects  of  Great  Britain  still  owing! 
that  nation  a  qualified  allegiance  (in  respect  of  sov- 
ereignty and  certain  exterritorial  laws),  but  who  by 
domicile  in  the  United  States,  Avithout  naturalization, 
owe  allegiance  to  the  sovereign  claims  of  the  United  | 
States  and  obedience  to  their  nuuiicipal  laws. 

(2)  Citizens  of  the  United  States,  alleged  to  have 
been  domiciled  in  Great  Britain,  who  had  not  become 
naturalized  in  Great  Britain,  but  who  owed  allegiance 
to  the  United  States,  obedience  to  the  jurisdiction  I 
asserted  by  the  juithorities  of  its  sovereignty — execu- 
tive, legislative,  and  judicial — and  obedience  to  their 
exterritorifd  laws. 

And  of  these  in  their  order. 


(ONE.) 

CLAIMANTS     WHO     WERE     ORIGINAL     I5KITISH     SUBJECTS, 
HUT    DGMIf'ILED    IN    'HIE    UNITED    STATES. 

In  respect  of  some  of  the  schooners,  there  are  two 
owners  in  ihis  class,  as  to  one  of  whom  there  may  be 


CLAIMANTS — BRITISH,  DOMICILED    IN    UNITED   STATES. 


41 


loiiht,  but  ill  respect  of  all  elainis  presented  in  belialt" 
[»t'  Tlioiiias  II.  Cooper,  as  owner,  the  taet  of  his  domi- 
filc  in  the  United  States  is  conclusive  a^-ainst  them. 

The  IWtisli  argument    assumes    (p.    3S-3!)),  and 

|i('('ially  from  the  letter  of  Secretary  Gresham,  which 
is  thi're  imported  into  this  case  for  the  first  time,  that 
he  <>iiiissi(m  of  the  words  "liritish  subjects,"  in  Article 

of  the  Convention,  as  defining  those  for  whom 
lirtat  liritain  might  i)resent  claims  under  the  Conven- 
tion, was  a  means  of  enlargement  of  jurisdiction  rather 
\\v,\\\  of  limitation.  As  a  matter  of  fact,  that  descrip- 
tion was  eliminated,  for  the  reason  that  its  use,  and 
he  similar  nse  of  terms  importing  the  original  citizen- 
^hij)  of  a  claimant,  had  in  all  prior  Conventions  been 
|)n)(hictive  of  much  embarrassment  to  the  Commis- 
fiioners. 

K'unning  through  the  proceedings  of  the  Mixed 
'onnnissions  of  1853  and  1871  it  will  be  seen  that 
L'liiiins  were  constantly  presented  in  behalf  of  persons 
[who  were  technically  Hritish  subjects,  because  never 
natnralized  in  this  country,  and  yet  who  had  estab- 
lished legal  domiciles  in  the  United  States. 

The  same  difficulty  had  arisen  under  all  the  other 
[Mixed  Connnissions  which  have  been  before  referred 
In  such  cases  it  was  insisted  on  the  one  side  that 
Isuch  a  description  of  per.sons  could  not  be  eliminated 
Toni  the  convention,  although  at  the  same  time  it 
woiihl  be  admitted  that  a  person  legally  domiciled  in 
a  country  at  the  time  his  claim  arose,  though  not 
iiatinalized,  could  not  recover  against  the  country  of 
his  domicile,  before  such  connnissions,  or  against  any 
othei-  country,  by  virtue  of  his  original  citizenship  of 
the  country  of  his  original  allegiance 

I  nder  the  Mixed  Commission  of  1853  the  term 
"british  subject"  was  in  such  case  eliminated  from 
the  convention,  by  construction,  by  the  British  umpire, 
|liales,  in  the  Lauraufs  case;  the  umpire  holding  that 


42  CLAIMANTS — HRITISII,  DOMICILED    IN   UNITED   STATES. 


:«? 


the  term  "  British  suhjeot,"  althoiijili  correctly  describl 
iii<^  the  jjolitical  status  ot'tlie  chiiinaiit,\vas  not  intendedl 
by  tlie  (jouveiitiou  ot"  iSoS  to  mean  tluit  a  British  sul>j 
ject  <h)mic'ile(l,  thouoji  not  naturalized,  in  Mexico,  ami 
who  had  thus  become  civilly  subject  to  the  laws  audi 
the  sovereiii'utv  of  that  (;ountrv  in  its  foreign  reliil 
tions  with  countries  other  than  Great  Britain,  couli 
urg"  his  ))olitical  status,  of  orij^'nal  allej»iance  to  Greatl 
Brifjiin,  as  a  claimant  ajiainst  the  United  States  fori 
injuries  suffered  at  their  hands  in  Mexico. 

Under  the  Mixed  Commission  established  by  tliel 
treaty  of  Washinjiton  of  1871,  and  wliich  finished! 
its  labors  in  1874,  the  question  came  up  on  denmrrerl 
of  the  United  States  in  the  Barclay  case,  and  it  was| 
there  held  on  the  broad  conferment  on  the  Conmiis 
sioners  of  jurisdiction  by  the  treaty  of  Washing-toul 
(it  ai)])earino'  ])y  his  statement  of  claim  that  he  wa.<[ 
a  resident  of  the  United  States,  and  therefore  domil 
ciled  there)  that  the  denuirrer  must  be  overruled  oii| 
the  ground  that  Barclay  was  a  "British  subject' 
within  the  lang'uag-e  of  the  Convention;  but  in  tliatl 
case  it  clearly  ajipeared,  as  strongfly  urged  by  tliel 
]3ritish  counsel,  in  ])oint  III  of  his  brief,  that  tliel 
claimant  Ikrclav  had,  while  domiciled  in  the  Unitedl 
States,  been  as  "faithful  to  the  United  States  as  anvl 
loyal  citizen,"  the  princijde  being-  that  he  had  beenl 
loyal  to  the  sovereimity  of  his  domicile  and  obeyed  I 
its  nmnici])al  laws.* 

Ill  consideration  of  these  diflHculties  under  priori 
commissions,  therefore,  the  framers  of  the  })resentj 
Convention  ])rovided,  in  effect,  that  the  claims  to  bel 
presented  would  only  l)e  those  that  Great  liritainj 
would  be  entitled  to  present  under  the  rules  of  inter- 

*  See  report  by  Her  Majesty's  agent,  of  tlie  Mixed  Commission,  presented 
to  both  Houses  of  Parliament,  1871,  and  published  in  Parliamentary 
Papers  under  the  title  "North  America,  No.  2"  (1874),  page  297. 


CLAIMANTS — BRITISH,  DOMICILED    IN    UNITKD    STATES. 


43 


iiiitioiial  law,  and  the  term  "liritish  subjects,"  as 
[ictiiiin;;'  claiinuiits,  was  omitted  by  express  intention. 

There  is  no  (juestion  whatever  as  to  Tliomas  H. 
'()u])er  liaving-  been  durin<»-  all  the  ])eri()d  in  ([uestion, 
[iiid  up  to  the  close  of  the  sittint"-  of  this  connnission  at 
Victoria,  lefj-ally  domiciled  in  the  United  States.  The 
[net  of  residence  in  New  York  and  San  Francisco 
[or  more  than  forty  years  continuously  was  testified 
1(1 1»\'  Warren  and  by  Cooper.  (See  Hecord,  pp.  !>40, 
2(i7,  1836-37,  !)41,^ 'Jol.) 

The  United  States  did  not  choose  to  call  out  anv- 
\\\u<>:  farther  reoardinj»-  the  undoubted  fact  of  that 
residence,  and  Great  Ih'itain  did  not  seek  to  ex])lain 
It.  It  was  found  by  the  testimony  that  Cooj)er  was 
II  married  man  and  had  resided  in  the  United  States 
liiid  made  his  home  at  San  Francisco  for  more  than 
piity-five  years  continuously,  and  that  he  had  never 
hi'cu  to  Victoria  but  three  times,  and  then  only  for  a 
[tow  (lavs  at  a  time  on  visits. 

It  is  universally  held  that  residence  unexplained  is 
Icdiudusive  proof  of  domicile. 

Dicey  states  the  rules  of  evidence  as  f(dlows  (see 
Diccv  on  "Conflict  of  Laws,"  American  notes  by 
[I.  P.."  Moore,  ISihJ,  p.  132): 

(1)  A  person's  presence  in  a  country  is  jiresumptive  evi- 
leiicc  of  domicile. 

(-)  When  a  person  is  known  to  have  liad  a  domicile  in  a 
pveii  country,  lie  is  ])resuraed,  in  absence  of  proof  of  a 
L'liaiige,  to  retain  sucb  domicile. 

(■>)  Residence  in  a  country  is  prima  facie  evidence  of  the 
intention  to  reside  there  permanently  {animus  maneiuli),  and 
|iii  so  far  evidence  of  domicile. 

See  cases,  and  see  Sir  W.  Scott,  so  often  quoted  on 
Itliis  subject:  "Time  is  the  g-rand  ingredient  in  con- 
Istituting  domicile."  (The  Harmony,  1800,  2  C.  Kob., 
|3J2:  see  Dicey,  p.  137,  note.) 

"  Residence  is  prima  facie  evidence  of  domicile." 
|(Sii-  Sherston  Baker's  Halleck,  Vol.  I,  p.  421.) 


:    i 


44  CLAIMANTS — HHITISH,  DOMICILED    IN    UNITED    STATES. 


CLAIMANT 


Pliilliiiiore  on  Domicile,  pa^^e  14(i,  says: 

Every  uiau  is  viewed  by  the  law  of  nations  as  a  member  o| 
the  society  in  whicli  lie  is  found.  Residence  is  prima  fam 
evidence  of  national  cliaracter,  susceptible,  however,  at  all 
times,  of  explanation.  If  it  be  for  a  special  purpose  iiiiJ 
transient  in  its  nature,  it  shall  not  destroy  the  original  oJ 
prior  national  character,  but  if  it  be  taken  up  animo  maninul^ 
then  it  becomes  a  domicile,  superadding  to  the  original  ol 
prior  character  the  rif^hts  and  i>rivilegeH,  an  well  as  the  (/ml 
bilitien  and  penalties  of  a  citizen,  a  subject  of  the  country  ii| 
which  the  residence  is  established. 

(Cited  ill  arg-umeiits  with  Ur.  Phillimor         Ulidesk 
case,  in  report  of  decisions,  Commission  i.      .^e  Set- 
tlement of  Claims  between  Great  Britain  and  tliei 
United  States,  U.  S.,  1856,  p.  445.) 

To  the  same  eifect  see  "  The  Indian  Chief,^''  Robl 
Adm.  Ke])orts,  3-12,  and  collection  of  anthorities,  audi 
their  analysis  in  Dana's  Wheatoii,  sec.  322  ct  scqS^ 
sliowiii<i'  the  British  and  American  authorities  IdI 
harmony. 

In  I  iiinney's  ]{ei)ort  (p.  349),  do;nicile  is  defiiiedl 
as  "residence  at  a  particular  place  accompanied  withl 
positive  or  presumptive  jiroof  of  continuing  there  fori 
an  unlimited  time." 

The  logical  positions  of  Great  Britain  as  to  Cooper| 
are  these: 

(li)  That  his  ownership  of  the  ve>^sels  seized  mustl 
be  taken  as  conclusive.  (In  this  we  fully  agree,  biitl 
on  other  and  distinct  grounds  from  those  taken  bvf 
Great  Britain.) 

(/>)  That  although  domiciled  in  the  iJnited  State:!] 
since  boyhood,  and  for  nearly  half  a  century,  becausel 
he  was  not  naturalized,  and  because  he  was  an  origi-[ 
mil  British  subject,  he  could,  under  the  municiijall 
laws  of  Great  Britain,  take  out  a  British  registry  foil 
his  ships,  and  put  them  under  the  British  Hag. 

(t)  That  so  domiciled,  by  virtue  of  such  registry! 
and  flag  alone,  in  direct  violation  of  the  munici})al  lawsl 


C.  LAW  LIBRARY 


CLAIMANTS — BRITISH,  DOMICILED    IN    UNITED    STATES. 

M  tlic  United  States  of  exterritorial  force,  and  in  direct 

ioliition  of  their  criminal  Hi..tuteH,  also  <»f   exterri- 

liiii   force,  and   in  direct  defiance   of  the  iiiitional 

■liiiiii   and  assertion  of  jurisdiction  over  the  sealing 

kviitcrs  of  Berin<j^  Sea  (a  soverei<in  claim  made  authori- 

iitively  by  all  the  branches  of  the  Gover  ment)  he 

I'diild  send  his  vessels  to  take  seals  in  those  waters. 

(il)  That    concurrently    with    his,    the    vessels    of 

I  '(Miller's  nei<>'hbors  in  San  Francisco,  who  wei'<  native- 

Imhii  citizens  of  the  United  States,  j)rotected  no  more 

tlijiii  himself  by  the  laws  of  the  United  States,  having- 

lict'ii  sent  by  them  to  take  seals  in  the  same  waters, 

liiiay  be  seized  and  c(mdenmed,  under  those  laws, 

Iwliile   at  the   same  time  their  owners,  his  neighbors 

|iiii(l   fellow-citizens   of  thirty-five  years,  witness  his 

|ri(('ts  go  and  come,  and  take  seals  with  impunity. 

(r)  That  if  in  these  circumstances  the  United  States 
iciitnrced  the  law  alike  and  with  equal  hand  u]»on  the 
liio]i('rty  of  all   their  citizens  of  San  Francisco,  be 
lie  a  citizen  by  domicile  or  like  his  neijihbors  by  iia- 
Itivity  or  naturalization,  that  Cooper,  by  reason  t>f  his 
(iiigiiial  political  allegiance  and  by  having'  ])Ut  his 
vessels  in  a  British  registry  and  under  a  British  iiag-, 
is  a  person  on  account  of  whom,  for  these  ])enalties 
I  that  he  has  suffered,  and  while  still  retaining-  his  Amer- 
ican (htmicile.  Great  Britain  can  claim  compensation 
t'lniu  the  United  States. 

We  aflirm  that  no  such  monstrous  doctrine  can  be 
tolerated  for  a  moment. 

In  such  circumstances  the  citizen  by  domicile  (for 
tliat  is  what  he  is)  can  not  lay  aside  his  character  as 
a  "national"  of  the  United  States  whenever  he  sees 
fit  t(»  defy  the  same  sovereignty  and  the  same  laws 
tliat  ])rotect  him,  by  assertin<^  his  original  political 
allegiance  and  the  fact  that  he  has  not  gone  through 
the  form  of  naturalization. 

Much  less  can  he  call  upon  the  country  of  his 


45 


M 


I 

i 


46  CI^ilMANTS BRITISH,  DOMICILED    IN    UNITED    STATES. 

orig'iiial  allegiance  to  make  reclamatioi  for  him  againsil 
the  nation  of  liis  actual  allej^'iaiicc^  for  what  he  hasl 
suffered  for  violation  of  the  hitter's  laws. 

We  ([iiote  from  the  lang'uag-e  of  Secretary  Fish,  inj 
his  letter  to  Mr.  Bachiller  of  xVpril  S,  1X74' (2  WharJ 
ton's  niji".,  see.  -lo),  the  principle  involved: 

It  7;onl(l  be  a  luoiistrous  doctrine,  which  this  Goverumenll 
would  not  tolerate  for  a  moment,  that  a  citizen  of  tlie  United! 
States  who  mij-ht  deem  himself  injured  by  the  authorities  n(| 
the  United  States  could,  by  tran.sferriug  his  allesiauce  tol 
auother  power,  confer  upon  that  power  the  right  to  inquiiel 
into  the  legality  of  the  proceedings  by  which  he  may  have] 
been  injured  while  a  citizen. 

Protection  can  not  be  invoked  b}'  domiciled  for- 
ei<i'ners,  except  for  discrimination  and  arbitrary  acts 
"as   distino'uished   from   ])enalties   and   {)unishment8| 
incurred  by  the  infraction  of  the  laws  of  the  conntrvf 
within  whose  jurisdiction  the  sufferers  have  jjlaved 
themselves."     (2  Wharton's  Dio-.,  sec.  18J>,  p.  484,  nnrl| 
authorities.) 

An<l  1  Kent,  \).  Ki:  "Domicile  is  the  tfst  of  national] 
character." 

Lord  Stowell  (I  Dod.  Adin.,  p  224,  Tlir  Ann): 

A  person  domicil  h1  in  another  country  is  to  be  taken  asii] 
subject  of  such  country.  *  *  ♦  He  van  not  take  atlr(mtai}(\ 
of  both  I'liarocterx  at  the  same  time. 

Bluntschli  (Int.  Law  codified,  :<ev.  394): 

Certain  persons  may,  in  rare  instances,  be  under  the  juris 
diction  of  two  dift'eient  States  or  even  a  greater  number  of  i 
States.  ' 

III  i-iise  of  eontlict  the  prefcrenve  will  he  given  to  the  State  in 
which  the  indiriduol  or  Jam  ill/  in  question  nare  their  domicik; 
their  rights  in  the  States  where  they  do  not  reside  will  be 
considered  as  suspended. 

Said  3lr.  Webster,  in  his  rejioit  to  the  President  of 
the  United  States  in  Thrasher's  case  ((!  Web.  Work.s, 
pp.  522--)23): 

The  geueral  rule  of  th<^  public  law  is  that  every  jmrstMi  of 
full  age  has  a  right  to  change  his  domicile,  and  it  follows 
that  when  he  removes  to  another  place  with  the  intention  to 


CLAIMANT 

Lake  that  place  1 
In  iiidetinite  per 

It'.  *  *  *  I 
Lt  persons  are  no 
liitnralized  accor 
Jlk'siance  to  this 

What  would  bt 
IniiiH'iit  if  the  so 
lluy  have  endgri 
[iiteipose  to  proi 

vhich  might  be  . 

heir  violation  of 

111  ([uestions  o 

Ired  is  the  aiiimn 

oiiable  rules  ant 

}\\:  Marcy,  ^ 
111  Koszta  case, 

.4Sr): 

8uch  domicile 
jillejiiance  to  the 
[lieiii,  incurs  the 
lo  tlie  civil  laws 
m  liim. 

It  is  to  be  U' 
|\viis  asserted  b 
led    pers4)n,   ; 
iiiilidir  cxcrfff  th* 
1(1..  1,.  005.) 

See  also  M 
Ihisni  (2  Crai 
(li;  Wall,  p.  1 
Wiiarton,  ii 
(2G!I-2.S1),  (pio 
lean  have  only 

I '.lit  1  must  ap 
Jdeiit,  in  a  State 
iState,  and  uiuy 

Til  in  (lirttinctio! 
Icdiinoition  with  th 
lli'ii'  tlie  United 
lYinUiiiiii  of  the  lii' 
llirltiin  to  protect 
ItKiii  111'  tue  l.aws  of 


CLAIMANTS BRITISH,  DOMICILED    IN    UNITED    STATES. 


47 


Lak(^  that  place  his  periiiauent  residence,  or  his  residence  for 
III  iiidotinite  period,  it  becomes  instantly  his  plaee  of  douii- 
[ilo.  *  *  *  It  is  well  known  that  hundreds  of  thousands 
It  persons  are  now  livir.g  in  this  country  mIio  have  not  been 
haturalized  according  to  the  provisions  of  law,  nor  sworn  any 
lllefiiance  to  this  Government. 

Wliat  would  be  the  condition  of  this  country  ami  its  (iov- 
[niiiiiiit  if  the  sovereigns  of  Europe,  from  whose  dominions 
jlity  liave  emigrated,  were  supposed  to  have  still  a  right  to 
liitiMiiose  to  protect  such  inhabitants  against  the  penalties 
\\m\\  might  be  justlj  incurred  by  them  in  consequence  of 
their  violation  of  the  laws  of  the  United  States? 

Ill  (|uestions  on  this  subject  the  chief  point  to  be  consid- 
ered is  the  animi(,s  matiidi,  iind  this  musi  be  <lecided  by  rea- 
sonable rules  and  the  general  principles  of  evidence. 

Mr.  Miircy,  Secretary  of  State,  Sej)tenil)er  26,  ISAS, 
111  Kdszta  case,  as  (|Uote(l  in  2  Whart.  Di^.,  sec.  11)8, 
I.  4Sr): 

Sucii  domiciled  citizen    *    *     *    is  under  the  bonds  of 

jille^iiince  to  the  country  ol  his  residence,  and  if  he  breaks 

lieiii,  incurs  the  same  penalties;  he  owes  the  same  obedience 

^0  the  civil  laws  and  must  discbarge  the  duties  they  impose 

M  liim. 

It  is  io  1)6  n<)te<l  tliat  in  the  Koszta  case  tlie  ri<>'ht 
kviis  asserted  ))y  rhe  United  States  to  protect  a  doini- 
lilcil  person,  althon<>'li  nnnaturalized,  df/aiiisf  every 
iidiini,  crcept  the  nation  of  his  oriqinnl  eiti^ensliip*  fSee 
I.I..  p.  r)05.) 

Sec  also  Marsliall,  ( '.  J,  in  Murr  »y  i\  Chxyiiiinf/ 
lulsrii  (2  (Jranch,  p.  120;:  Carlisle  r.'Unitui  States 
;ii;  Wall.,  p.  147). 

\\  liarton,  in  his  Criminal  Law  (Sth  edition,  sec. 
J2(jli-2S1),  (piotes  Phillimore  to  the  point  that  a  man 
ail  have  only  <me  allej^iance,  and  ))roceeds: 

l'>ut  I  must  agree  with  Hett'ter  in  holding  that  a  mere  resi- 
kleiit  ill  a  State  owes  tor  the  time  being  allegiance  to  such 
[State,  and  may  be  guilty  of  treason  to  such  State  if  as  a 

Tliis  (lirttiiictioii  is  ikh;  in  ])()int  here,  but  attention  is  called  to  't  ia 

iiiiiiortion  with  tho  (|iieHmoii  of  original  iillegiancvi,  coiiHidered  later. 

ili'ii'  the  United  Staten  ih  not  imserting  tho  right  to  protect  ('nopor  for 

Iviiiliiiion  of  tho  lawH  oi' (^reat  Britain,  but  is  denyiufj  tho  right  ot  (ireat 

iBnt.iin  to  protect  Cooper  in  his  defiance  of  the  sovereignty  and  "iola- 

Itidii  of  tUe  laws  of  the  Luilwd  States, 


t  '.'I 


48 


CLAIMANTS BRITISH,  DOMICILED    IN    UNITED    STATES. 


private  i)ersoii  lie  wages  war  agaiust  it  or  renders  comfor| 
to  its  enemies. 

Cobbett.  for  instance,  when  in  the  United  States  \va 
never  naturalized,  nor  did  lie  ever  restrain  himself  fioii 
declaring  that  he  was  and  continued  to  be  a  British  subjectj 
yet  no  one  would  liave  pretended  that  Cobbett,  while  residiiif 
in  the  Tnited  States,  was  not  liable  to  be  indicted  for  at 
ofl'onses,  political  or  otherwise,  made  indictable  in  the  placi 
of  his  residence,  and  the  same  position  has  been,  as  we  havJ 
seen,  taken  by  the  British  (Government  in  respect  to  citizeiil 
of  the  Inited  States  who  when  residing  in  Ireland  havebeeil 
engaged  in  conspiracies  against  the  British  Government. 

And  he  closes  with  this  (]iiotati<)n  froiii  Pliinimon 

All  strangers  commorant  in  a  land  owe  obedience,  as  sul>| 
jects  for  the  time  being,  to  the  laws  of  it. 


(( 


It  is  not  necessary  to  citizenship  that  tlie  A 


onii- 


cih^l  inliabitant  should  have  the  right  to  vote  or  lioldl 
politlciil  oftice;"  and  under  all  the  authorities,  withoiitl 
exce])tion,  a  ]»erson  so  domiciliated  owes  civil  iuidl 
])olitical  alle;^'ian('e  to  the  local  sovereignty.  (Set! 
Judge  Hoar  in  Coinmission,  1S71,  Report  ot"  Britislil 
Agent,  p.  -JSO,  Appendix  (k  'A'enice,"  2  Wall.,  274;| 
"Peterhort","  •)  Wall..  (K);    "^Mrs.  Alexanders  Cotton," 


•2  Wall.,  41 


A'euus,"'  S  C'r.,  2^6;   .Slorv's  Contl. 


Laws,  sec.  (JS;  Morlex's  Int.  Law,  sees.  6S,  HiS;  Trist's 
Int.  Law,  II,  28.'},  298-!»:   I,  Sl>,  S3;   Hnlleck's  Int| 
Law,  717,  sec.  "Jg;   702,  sue,  7:   TOo,  sees.  12,  13,  14; 
2  Kent's  C(u.i.,  s,'c.  20.) 

And  in  return  he  is  entitled  to  the  e(jual  ])rotectioiij 
ot"  the  laws  <»t"  that   sovereignty  v/ith  other  citizeiif,] 
with  the  very  limited  (jualification  that  the  local  sov- 
ereignty can  not  interven<'   to  ]»i-otect  liim  from  the 
conse(piences  of"  liis  infraction  of  the  sovereignl'y  ortttl 


th 


le  exterritorial  laws    ot  the   nation  ot   ins  oriifiui 
allegiance. 

The  local  sovereignty  can  ])rotect  him  and  protedl 
his  property  and   make  reclamation  fitr  him  against 
every  other  nation,  except  the  one  of  his  original  alle- 
giance, in  any  case;  and  in  case  of  war,  e\en  if  thel 
country  of  his  original  allegiance  is  belligerent,  flu 


;i(liiiiiiistrative  •< 
[)\l  obtuiuiiig  leg 

try  exist,  or  if  s 
Ivaiii;  (did  IIk'H  I 
hiiilijri'ts  and  othi 
\slnli'  hikI  ilie  jiixi 
Itliiit  ( ()ini)eiisati 
liiiiii  oi'  prejmlic 

lucts  <'!'  injustice 

r,ri/(iilhi^  (ill  !> 

\to  tlif  hues  of  th( 

lUit  even  H 

When  the  suli 
lor  iciiiporarily  r 
Iddiiiicile.'l  there, 
Iwiiat  affected. 


(iiciit  Britain  li 

lilt  .1  Hritisli  fiitlier, 

lot'  l.iifrlnutl,  and  ta 

ll'.ii;f|;mii,  -,vii8  gui! 

I'liaLs.  XVIII.') 


'J^j'!,ji-,,.„vi^t- 


CLAIMANTS IJRITISH,  DOMICILED    IN    UNITED    STATES. 

I'dUiiti'v  of  his  local  allejiirince  l)eiii<>'  neutral,  mav 
intervene  to  ])rote<-t  Uiin  as  a  neutral  as  a;iainst  the 
■diintry  ot"  his  ori<>inal  jille^iance;  Inif  never,  ereii  'ni 
^hdi  ease,  if  lie  lias  been  f/nilfi/  of  an.  act  hostile  to  the 
rdiiiifri/  of  his  orit/innl  alleffiaiicc* 

^\'hat  riiilit  of"  protection  or  re(  laniation  I'eniains  t(> 
riic  nation  of  orijiinal   allegiance  a;iainst  the  nation 
«if  ddiuicile  in  respect  of  the  ^iihjectof  the  foi'nier  so 
Iniiiiciliated  hnt  not  natni-aliz'vl  in  the  latter? 

There  is  no  conflict  of  authority  in   international 
i;i\\  on  this  suhject,  and  the  strictest  rule  aji'ainst  the 
i(iiuiiTr\'  of  domicile  in  fa\(»r  of  the  nation  of  original 
iillcL^iance  is  laid  down  hv  Hall  (sec.  87,  ]>i».  21tl-2!>L*), 
;  tdllows: 

Tlicy  (the  iiation.s  of  <»iis>iual  allegiance)  have  tlie  right  to 
It'Xiict  re})aratioii  for  niii/treatnient  of  tlieir  siit  ts  t>y  tlie 
li(liniiiistrati>e  a.si('iits  of  a  forei,s>n  •iovernnicnt  im  means 
1)1'  (ilitaiiiiiig  ley'iil  redress  tliroiiji'h  the  tribunals  of  the  eoiin- 
iTiycNist,  or  if  such  means  as  exist  ha\e  been  exhausted  in 
|viiiii:  and  iheii  Imvc  tlie  right  to  minire  tliat,  an  lictirecn  lliiii 
stihjrrfN  and  otiicr  prirate  in(liri(h(((lN,  tlie  protection  of  lite 
sItilrdiHl  the  jiixiiec  oj'  tlie  courts  .slinll  he  afforded  (!<poilJif,  aiul 
Irlial  ( ()in])ensati()n  shall  be  made  if  tlie  courts  from  corrup- 
Iridii  or  prejudice  or  other  like  causes  are  j;'uilty  of  serious 
|iii'ts  of  injustice. 

Ilroddtii,  (fit  permits  ciitcriiuf  ti  foreiiin  country  must  sultinit 
|/o  the  liars  of  that  coiiniry,     *     *     * 

i>iit  e\en  Hall  (|ualifies  this  rule  as  follows,  'ii'T): 

\\  lien  the  subject  of  a  state  is  not  merely  passing  through 
|i>i'  It  iiiporarily  resident  in  a  foreign  country,  but  has  become 
Idoiiiiciled  there,  the  right  of  his  state  to  protect  him  is  some- 
|\vli;ii  affected. 

Mall  says  further  that  the  jurisdiction  of  the  state 
ilomicile  is  complete  o\  er  forei<iners  who  are  ame- 
Inahle  to  all  its  laws  (i)p.  21(i-2-21). 

'•IriMit  Hrituiu  held  that  a  pet'Bon  who  was  a  Hritish  subject,  the  sou 

III  .1  Hiitisli  father,  born  in  France,  but  still  a  Hritinh  subject  by  the  laws 

|iil' I'lifriiiiid,  and  takiug  a  coinmissiuu  in  the  French  army  iu  a  war  with 

l'.iii,'l;Mni,  -.vas  gnilty  of  high  treason,   and  he  was  convicted,     (State 

Trials.  X  VIII.) 


49 


w  s- 


-4" 


P 


50 


CLAIMANTS I'.hMTISH,  DOMICILED    IX    UXITKD    STATES. 


Lord  \\\'stl)ur\'  s;i\ 
H.  L.  Sc.  441): 


(in  IMiu'  r.  L'dnv,  L.  K.  I, 


Tlie  law  (if  Kiijiliiiid  and  of  all  (!ivilize<l  countries  ascribes! 
to  oaf'h  individual  at  his  hirtli  two  distinct  lejial  states  ot| 
ciMuiitions,  one  by  virtue  of  wiii(;ii  lie  becomes  the  subject  ofl 
some  i)articular  country,  liindinj;  him  by  the  tie  of  naturall 
allegiance,  and  which  nniy  be  called  his  political  status|[ 
another  by  virtue  of  which  he  has  ascribed  to  him  the  cijar| 
acter  of  a  citi/en  of  souie  i>articular  country,  and  as  such  is 
possessed  of  certain  municipal  rights  and  subject  to  certainl 
obligations,  wliicii  latter  character  is  the  civil  status  or  con  [ 
dition  of  the  individual,  and  may  be  quite  ditt'erent  ftom  1 
political  status.  The  political  status  may  depend  on  diflerent| 
Uurs  in  (lip'ercnt  connfries,  irhcrcas  the  ciril  .status  in  tfoverncii 
unirfr.s((lii/  l>y  one  ninjik'  ininciplr,  iiamch/,  that  of  (lomink\ 
which  is  the  eritcrinii  established  Ity  (aw  for  the  jxtrpose  of  deterl 
mining  ciril  status. 

Hut  this  suUject  will  be  considered  more  directlvl 
when  we  come  to  the  status  of  American  citizeDsl 
alle<>'ed  to  liave  l)een  domiciled  in  Great  liritaiul 
(J)ifra.  })[).  53-(»6). 

Tlie  cases  cited  in  the  Hritisli  tu-g'ument  ou  tliel 
subject  ot"  domicile  (]).  oS),  serve  t<>  illustrate  tlie| 
prhicii)le,  thus : 

In  "2  Knapp,  V.  C.  -i!);"),  it  was  decided:   (I)  Tiiatl 
Drummond  was   a  British  subject;   (2)  that  he  was] 
domiciled  in   France;   (3)    that  under  a  treaty  })ro- 
vidin^-  for  compensation  by  the  Frencli  Government  I 
for  losses  to  l^ritish   subjects,  Drunnnond  could  not 
claim  compensation  from  France  as  a  British  subject 
because  of  his  domicile  in  France.* 

Here  in  tiiis  case  our  ]>ositions  are  as  to  Cooper  I 
precisely  the  same  as  tlieic  held  as  to  Druinmoiul 
and  France,  thus:  (1)  That  he  is  a  British  subject  bv 
original   alle(>iance,  as   Drunnnond  was;    (2)  tliat  atl 
the  time  of  the  allejied  injury  he  was  domiciled  iu 

*In  the  same  rejiort  (2  Kuap]t,  1'.  C.  51)  will  be  found  similar  holdiiip 
eqniilly  strong  against  tho  claim  in  behalf  of  Cooper.  In  Long's  ci>m 
it  is  held  that  a  ('or]>oi'ation  composed  of  firitish  subjects  existiug  iua 
foreign  country  by  the  hitter's  assent  must  be  held  to  be  a  foreign  cor- 
poration. 


CLAIMAJ 

the  I'nited  Sti 
inr  compensa 
(ircat  Britain 
the  Tnited  St 
('oopcr  becau; 
lliut  the  adde( 

IS  en<>'a<>e<l 
|sov('rei;4'nty  o 

Hut  the  win 

liu  the  shoes  o 

(JrcMt  Britain 

|l)v  tlie  treaty 

as  follows:* 

Tlie  inbabitai 
I  have  liberty  free 
I  cargoes  to  all  su 
latbresaid,  to  wL 
Jto  enter  into  tl 
jparts  of  the  sal 
loeciipy  houses  ai 
Imerce;  and,  ge 
nation,  respecti\ 
land  security  for 

I'm  ELY. 

It  can  not  1: 
her  subjects  rt 
jin  this  treaty, 
security  of  th 
statutes,  as  pi 
Gi'r.it  liritain 
any  sucli  sub 
itf  the  lJnite( 
those  laws  an 
statutes  are  in 
('oiiimerce  of 
to  all  citizens 
'"ill!  jiersons." 


*'i'ioatie8  and  C 
p'owtrs  (p.  410,  ed. 


CLAIMANTS — BRITISH,  DOMICILED    IN    UNITED    STATES. 

the  United  States;   (8)  that  under  u  treaty  providing' 

111-  coinpensation  for  injuries  to  persons  for  whom 

lliicat  Britain  is  entitled  to  make  reclamation  auainst 

1  " 

the  Tnited  States,  reclamation  can  not  be  made  tor 
('iioper  because  of  his  domi<'ile  in  the  United  States; 
liiit  the  added  objection  in  Cooper's  case  is  that  he 
WHS  eng'a<^ed  in  violatinji'  the  laws  and  defyin<^'  the 

|s()vcrei;^"nty  of  his  domicile. 

Htitthe  whole  (piestion  as  to  any  claimant  standinj'- 

liii  the  shoes  of  Cooper  is  not  only  ccmduded  a<>ainst 

((Jrcat  Britain  by  the  rules  of  international  law,  but 
1)\   the  treaty  between  the  nations  of  July  3,  IHlo, 

las  follows:* 

Tlie  iubabitants  of  the  two  countries,  respectively,  shall 
Ibave  liberty  freely  and  securely  to  come  with  their  shij)s  and 
ciirs'oesto  all  such  places,  ports,  and  rivers,  in  the  territories 
iitoiesaid,  to  which  other  foreigners  are  permitted  to  come, 
Ito  enter  into  the  same,  and  to  remain  and  reside  in  any 
Jparts  of  the  said  territories,  respectively;  also  to  hire  and 
locciipy  houses  and  warehouses  for  the  purposes  of  their  com- 
Imerce;  and,  generally,  the  merchants  and  traders  of  each 
Illation,  respectively,  shall  enjoy  the  most  complete  protection 
land  seciurity  for  their  commerce,  mut  subject  always  to 

TUK  LAWS  AND'STATUTES  OF  THE  TWO  COUNTRIES,  RESPEC- 

ITIVELY. 

It  can  not  be  seriously  contended  that  in  behalf  of 

llicr  subjects  residing  in  the  United  States  as  provided 

ill  this  treaty,  and  enjoying  complete  ])rotection  and 

security  of  their  laws,  but  subject  to  their  laws  and 

stiitutes,  as  provided  and  stipulated   in  the  treaty, 

[(ir'-.it  liritain  v';aii  make  reclamation  on  account  of 

any  such  subject  tor  injuries  suflfered  at  the  hands 

liif  the  United   States  while  in  the  act  of  violating 

those  laws  and  statutes,  more  especially  when  such 

statutes  are  in  tiie  nature  of  regui.itions  of  trade  and 

coiiimerce  of  exterritorial  effect,  directly  applicable 

t(»  all  citizens  of  the  United  States  everywhere  and 

'all  [)ersous." 

*  I'loaties  and  Conventiona  between  the  United  States  and  other 
I'owtrsd).  410,  ed.  1889). 


51 


111 


52 


CLAIMANTS BRITISH,  DOMICILED    IN    UNITED    STATES. 


In  jtoiiit  under  this  treaty  is  tlie  opinion  ot"  tin- 
Coiinnission  for  tlie  settlement  ot"  c) -iins  between  the 
Tnited  States  and  Great  Hrilain  under  the  convention 
ot"  IS"),')  (pp.  ,'}H6-i}87),  and  also  elted  in  Barclay's 
ease  under  the  Connnission  ot"  1871. 

Finally,  as  to  the  Coojx'r  chiss  of  claims,  the  lo<»'i- 
cal  position  of  (Jreat  Britain  is: 

{(i)  That  under  the  I'ules  <»f  international  law  audi 
tlie   treaty   of    ISlo    unnaturalized    British   subjects 
lef>'alh'  doniicile(l  in  the  United  States  are  entitled  td 
the  ])rotection   of  the   laws   e([uall\    with  Aniericiiii 
citizens:   l)ut — 

(h)  T\\vy  are  at  the  same  time  exempt  and  privi-l 
lened  from  the  effects  of  the  o})eration  and  execution! 
of  the  laws  that  protect  them,  and  thus  possess  tlit* 
])rivile,ues   and  ])rotection   of  both  nationalities  and 
oblio'ations   of   obedience   to   neither;    not   to   (ireat| 
Britain,  because  beyond  her  territory  and  jurisdiction, 
and  not  to  the  United  States  because  they  ma}'  claim  | 
protection  aoainst  them  as  jiritish  subjec^ts. 

It  is  not  true,  and  Fiore  em]»liatically  denounces 
the  extension  of  such  })rotection  as  is  here  claimed  Inl 
Great  liritain  in  this  (dass  of  cases  in  his  Nouveau 
Droit  International  Public,  1,  odl :  "The  ))rotectioii 
is  illicit  and  unjustifiable  when  its  object  is  to  confer 
a  j)rivile^ed  })osition  u])(»n  the  subjects  or  citizens 
(Nationaux)  residino-  abroad." 

Cooi)er  was,  at  the  time  he  became  the  legal  owner 
of  these  vessels,  and  at  the  time  o+"the  seizures  que"" 
the  United  States,  and  in  their  i-elations  to  him  as| 
ao-ainst  Great  Jiritain,  an  Amcvican  citizen,  and  as 
such  his  ships,  as  we  shall  see,  were  entitled  to  cam 
no  flag  but  that  of  the  United  States,  and  were  not  | 
even  entitled  to  Ih-itish  registry. 

There  remains  to  l)e  considered  in  cases  like  Cooper's  I 
the  position  taken  in  the  liritish  argument,  which,  we  | 
take  the  liberty  to  obserAe,  should  carry  its  own  refu- 


CLAIMANTS — CITIZENS    OK    THE    UNITED    STATES. 

tiitioii,  tliat  under  coiiveiitioiis  ot'  this  kind,  in  tenns 
tor  the  adjnstn'ent  of  in-ivate  chiinis,  hke  all  the  con- 
ventions on  claims  ever  entered  int<.  in  some  way  or 
(itlicr  "the  flao-  and  the  register"  of  a  olii|)  are  to  carry 
liint  (»nly  conclusive  evidence  of  the  nationality  of  the 
(iwiier  in  the  sense,  not  only  ^>f  political  citizenship 
hut  of  domicile,  and  are  also  to  carry  that  conclnsive 
|)r('sumj)tion,  not  only  on  the  hij^'h  seas,  but  into  this 
international  court. 

Hut  as  this  argument  applies  as  well  to  the  claims 
presented  in  behalf  of  American  citizens,  native  born 
and  naturalized,  alleged  to  be  domiciled  in  Great 
Hritiun,  it  will  be  treated  under  a  subsequent  caption. 
(See  pp.  66  to  85.) 


63 


(TWO.) 


Tin:  CLAIMANTS  WHO  WERE  ORIGINAL  CITIZENS  OF  THE 
IMTKl)  STATES,  NATIVE  HCMiN  OR  NATURALIZED,  AT  THE 
TLMH  OF  THE  ALLE(iEI)  INJURIES,  BUT  NOT  AT  THAT  TIME 
NATURALIZED  IN  (JREAT  BRITAIN  UNDER  THE  NATURAL- 
IZATION TREATY  OF  1870,  EVEN  IF  DOMICILED  IN  GREAT 
lilv'ITAIN,  ARE  NOT.  UNDER  THIS  CONVENTION,  PERSONS 
•IN  WHOSE  BEHALF  (iREAT  BRITAIN  IS  ENTITLED  TO 
CLAIM  COMPENSATION  FROM  THE  UNITED  STATES." 


U.  S.  and 

Sp.anish 

Opin. 

Answer  to 


In  the  fii.  t  ])lace,  the  burden  is  upon  Great  Britain 
to  show  that  !:lie  claimants  are  such  persons,  and  if  it 
were  true  that  legal  domicile  would  give  them  the  umpke.No.i 
iiccmUmI  status,  the  record  fails  to  disclose  the  proof  p^^'^*^®"^;^ 
nf  domicile  within  the  rules  of  evidence  in  interna-       ' 
tinnnl  li'.w.* 

l)Ut  conceding  for  the  purpose  of  this  argument 
tliMt  these  claimants  had  a  domicile  in  Great  Britain, 
tliere  is  no  authority  wdiatever  to  sustain  the  position 
of  that  nation  that  it  can  in  their  behalf,  in  the  condi- 
tittns  here   presented,  make  reclamation  (ujaitist  ihe 

*  See  p.  89,  et  seq. 


54  CLAIMANTS CITIZKNS    OF    THK    UNITED    STATES. 

U)i'it<(l  States,   irJiiih   is  still  tlic'ir  coin/tr//  of  politiroil 
(illcffidi/cr. 

Hw  cUitlioritic's  iire  all  tlio  otlior  way. 

IVt'orc  procccdinj^'  to  cite  tluMii,  it  is  proposed  tu 
l)rieHy  aii!il>zo  the  authorities  cited  in  tlie  Britisli 
ar^uiuent,  coMnnenciiii)'  at  ])a<i'e  AO. 

((I)  The  citation  from  A'attel  is  tlie  perfectly  well- 
settled  general  doctrine  that  a  toreijiiier  passing 
throMi>h  or  domiciled  in  a  country  shall  be  secure 
from  injury;  hut,  of  course,  the  ])oint  is  not  discusseil 
as  to  how  far  such  foreigner  will  be  protected  as 
a^i'ainst  his  own  country;  neither  is  the  principle  re- 
ferred to  as  to  obeying'  the  laws  and  respectinji'  tlie| 
soverei^iu  claims  of  his  own  country. 

The  opinions  cited  from  the  domestic  body  of  tem- 
porary commissioners  aj)pointed  l)y  the  United  States 
to  distribute  the  award  for  the  Alabama  claims  are  not 
usualh'  held  to  be  authoritative  in  any  couii:.  Their 
law  of  decision  was  statutory  and  wholh'  muiiici})iil. 

Many  of  those  opinions  are  adverse  to  the  Britisli 
positions  on  man}'  })oints,  but  we  shall  not  cite  tlieiii 
on  our  side,  because  they  are  not  evidence  of  the 
rules  of  international  law  as  held  by  any  nation,  not 
even  the  United  States.  But  the  (juotation  from 
Commissioner  Rayner's  decision  is  cited  in  the  Britixli 
argument,  from  the  case  of  West  r.  United  States 
No.  91,  where,  after  citing  the  geiuM-al  princijde  from 
Vattel  (as  cited  in  the  op[)osing  lirief  here),  the  com- 
missioner goes  on  to  state  the  a])])lication  of  the  riik' 
to  foreigners  resident  in  Kngland,  as  there  ([uoted; 
but  it  was  not  asserted  in  that  opinion  that  the  riglit 
of  protection  of  the  country  of  domicile  against  the 
country  of  political  allegiance  would  extend  to  cases 
where  the  injuries  to  the  domiciliated  person  had 
resulted  from  a  direct  violation  of  the  laws  and  sov- 
ereignty of  the  country  of  origiiud  ])olitical  allefi'i- 
ance.     Indeed,  the  statement  in  that  oj)ini<»n,  referriiiir 


CLAIM 

ltd  the  right  of 

Iiiativity,"  refe 

Itlic  next  line  s 

Iniciit),  "this   1 

jis  within  the  j 

*     *     "Bu 

Ithc  deck   of 

iii;i\   rightfullv 

The  connnis 

Itiiuc  of  war  as 

Itcction,  but  iis 

llciirued  comm 

Icveii  as  of  a  ti 

After  statin}. 

ichin-acter,"  he 

Itiiue  of  war)  u 

liicter  from  res 

Ifiir  (IS  rcf/ards 

1  original  allegit 

Ibnvever,  th 

^Riiyner  in  the 

^idi'cision,  for  w 

lish  subjects,  al 

States,  were  m 

inished  by  Gre 

within  the  pro 

The  reasoni 

j(i|iinion,  and  w 

incnt,  is  ill  coi 

[iis  we  shall  sei 

(h)  The  sec 

siiiiK^  opinion  i 

(|ii(it('(l  is  not  : 

nil  iuternatioui 

it  will  be  se 

liiw ,  l)efore  coi 

if  ;i  claim  wer 


CLAIMANTS CITIZKNS    OK    THE    UNITED    STATES. 


55 


liii  tlic  ri<ilit  ot  |»n»t('('ti(m  "iis  aji'iiiiist  tlu*  liuul  of  his 
Jiiiitix  ity,"  ivt'cMTcd  only  U)  tlie  jwrsoii,  jind  then,  as 
Itlic  next  line  states  (not  (inoted  in  the  British  nv^u- 
liiiciit),  "tins  ])rote('tion  innres  r>nly  so  htn;^'  as  he 
lis  within  the  ])ale  of  her  jnrisdiction."  iVnd  a,i>ain: 
*  *  "Jiut  as  lonji"  as  he  remains  on  the  soil  or 
Itlic  (leek  of  u  shi|»  of  the  British  (ioverninent  he 
iiiiiN'  riiihtfully  claim  ju'otection." 

The  connnissioner  cites  Kent  as  to  the  conditions  in 
Itiiiic  of  war  as  to  alien  enemies  and  their  ri<iht  to  pro- 
Itcction,  bnt  as  it  was  nnnecessary  to  the  decision  the 
jlcanied  commissioner  did  not  cite  this  (|iialification 
ji'vcn  as  of  a  time  (►f  war  fnnn  Kent  (I  Kent,  76): 

After  statino-  that  "domicile  is  the  test  of  national 
Icliaracter,"  he  g-oes  on  to  say  that  the  limitation  (in 
time  of  war)  ii])on  the  |)rinciple  of  determininji'  char- 
acter from  residence  is  that  the  domiciled  ])erson  .so 
\f(tr  (IS  rcf/ard.s  Jiis  oivn  coiintrfi  (i.  e.,  the  country  of 
original  allegiance)  ^^ihHst  not  fake  up  arms  afjainst  HP 
However,  the  statement  quoted  from  Commissioner 
jRayner  in  the  opposing-  brief  was  not  essential  to  the 
gjik'cision,  for  when  he  came  to  that  he  held  that  Brit- 
subjects,  although  legally  domiciled  in  the  United 
States,  were  not  entitled  to  any  i)art  of  the  fund  fur- 
iiislied  by  Great  Britain  for  the  indemnity  of  persons 
within  the  j)i*otection  of  the  United  Btates. 

The  reasoning  that  follows,  in  the  commissioner's 
[ti|iiiiion,  and  which  is  adverte<l  to  in  the  British  argu- 
nu  lit,  is  ill  consi<lered  and  was  not  the  true  doctrine, 
as  we  shall  see. 

(M  The  second  (piotation  (on  page  ol)  is  from  the 
I  same  opinion  in  the  same  case,  and  the  last  paragra})h 
•luoted  is  not  reasoned  in  the  light  of  the  authorities 
nil  international  law. 

it  will  be  seen  that  in  any  case,  under  international 
law,  before  commissioners  under  any  convention,  that 
it  a  claim  were  })resented  in  behalf  of  a  liritish  sub- 


56 


CLAIMANTS CITIZENS    Ol"    THK    UNITED    STATES. 


jcct,  niinnTuralizt'd  in  tlie  United  States  but  (loniiciliil 
there,  siicli  clnini  restiuji'  on  injin'ies  sustained  wliilei 
violating    the   exterritorial    hnvs   and  sovereignty  (ill 
(Jreat  Britain,  as  well  as  in  the  case  stated  1)\'  (/oiiij 
missioner   Hayner,   where  he  assumes  that  the  Aliij 
hania    claiins  were   allowed   a<j;ainst   that   nation  for 
ne<>lect  to  execute  her  own  laws,  the  same  ansAcii 
which  he  there  puts  in  tlu^  mouth  of  that  nation  woiilil 
be  returned,  viz: 

That  is  my  aifair.     I  am  fully  comiieteiit  to  to  tak«^  care  ol| 
my  own  subjects. 

But  that  (iovernment  would  add  also  to  the  llnitcil 
States  in  a  case  like  the  present,  were  their  positions 
reversed : 

The  policy  of  international  law  will  not  })ermit  yoiil 
to  make  re(damation  from  me,  or  to  jn-otect  my  siili- 
jects  for  a  violation  of  my  laws  that  l)ind  them,  (ir 
for  rebellious  defianci^  of   mv  sorvereiyii  authority 
over  a  territory  which  I  claim — (tiid  orcr  which  yoH\ 
do  not  rioiiii — exclusive  jurisdiction. 

(r)   The  IwJhiu  Chirf' 

In  that  case  the  })erson  had  never  lived  in  America  I 
after  it  became  a  nation  (not  after  1773).  In  addi- 
tion, the  decision  was  dire<'tly  contrary  to  that  stated 
in  the  text  of  the  o])})osin<:>'  arj^'ument,  to  wit:  It  was 
that  the  owner  had  lost  the  benefit  of  his  native 
American  character,  if  he  ever  had  any,  wdiich  lie 
had  not.  This  was  not  a  case  where  the  oriii-iiiiil 
citizen  of  one  country,  domiciled  in  another,  was 
makinii'  a  claim  thronyh  tlu'  countrv  of  his  domicilia- 
tion aji'ainst  the  country  of  his  oriuinal  alle^^iance. 

((I)  The  case  of  The  President  was  a  claim  made  in 
behalf  of  an  Amerii-an  citizen  domiciled  at  the  Capi' 
of  Good  Hope,  a  C(»lony  of  Holland,  with  whidi 
nation  Hnjiland  was  at  war.  The  onlv  connnent  we 
make  is  that  this  was  not  a  case  where  an  American 
citizen,  unnaturalized  abroad  and  owinj>- orig'inal  alle- 


CLAIMANTS CITIZENS    OV    THE    UNITED    STATES. 

liiiiicc   to   tlie    United   Stiitcs,   wms   iiuikino'   a   claiiu 
|ai:iiiiist  the  country  of"  liis  orioinMl  iillco-iance. 

(c)   In  tlio  caso  of  tlio  ^^^(t(■|ll('ss,  a  liritisli  subject 
|\v;is  domiciled  in  Boston,  and  it  is  a  case  stron<>"ly  in 

|Hiiiit  tor  the  United  States  before  this  f\)ininission 
[in  the  case  (»f  the  (daiinani  ('oo[)er. 

It  turned  u])on  tlie  hiw  ap})hcal)h'  to  domicile  for 
I  mercantile  and  trade  jjurposes,  and  was  for  an  alle<»ed 

violation  of  the  second  section  of  the  navigation  laws 
I  (if  (Jreat  Britain,  to  wit: 

\o  alien  shall  exercise  tlie  tnule  or  occupation  of  a  factor 
in  tlic  plantations. 

The  case  is  clearly  not  to  the  ])oint  cited.  It  is  not 
ii  claim  for  indenmity  for  injuries  sutl'ered  from  violat- 
iiij^'  the  laws  of  Kn<ilanda))])lyin<i-  to  liritish  s\d)jects, 
and  is  very  far  from  an  authority  to  the  effect  that 
the  country  of  his  domicile,  the  tinited  States,  could 
niMkc  reclamation  ag-ainst  Great  Britain  for  the  in- 
juries so  suffered. 

(,/)  This  is  DrumuKmd's  case  (2  Knapp)  discussed 

We  repeat,  if  it  were  a  case  where  France,  because 
(tf  l)i'ummond's  domicile,  claimed  the  right  to  ])rotect 
iiiin  and  reclamation  for  him  from  (ireat  Britain  for 
injuries  suffered  while  violating  (ireat  IWtain's  laws, 
and  claim  of  jurisdiction,  the  case  would  be  in  point. 

l)Ut  taking  this  case  for  illustration  of  the  wliole 
class  offered,  let  us  carry  it  a  ste])  further  and  it  will 
he  seen  how  misleading  it  is  to  cite  cases  generally 
to  a  point  which  is  not  covered  or  approached  in  their 
t'onsideration  (»r  decision. 

Supi)o.se  in.stead  of  a  treaty  providing  for  reclama- 
tion by  JJrifisJt  subjects  fif/aiiist  France  it  had  been  a 
treaty  providing  for  reclamation  for  injui-ies  suffrrcd 
III/  liril  ,siihj('cfs  of  France  in  general  against  (Jreat 
iiiitain,  including  domiciliated  persons,  in  certain 
waters  claimed  by  the  British  sovereign  as  jurisdic- 


57 


58 


CLAIMANTS — CITIZENS    OF    THE    UNITED    STATES. 


CLAIMS 


tioiijil  Jit  tlic  time  of"  the  injuries;   nssuinc  tlmt  iU'tsdf 
Piirliiiiiu'iit  luid  hccii  |)jiss('(l  t'urhiddiiiiLiUiKlcr  iiciuiltio 
ill!  jxTsoiis  fVoin  (litin^ccrtnin  acts  in  those  vvjit('rs,*iiiiil 
tli;it  in  |»Mrsuini('('  of  the  Inw  tlic  sovcivi^'n  iiutlioritv 
ot"  (IrcMt   Hi'ititin  connnittcd  tlic  inJMrics  conipliniui 
of:  ;ind,  linsdK',  jissunu'  tliiit  the  ciisc  l»cft»i"('  tlic  coiiiil 
liiid  hci'ii  wlictlicr  Druiiiniond,  tlioti^li  ii  Uritisli  siili-| 
jcct,  liccMiisc  of  liis  dotnicilc  in  i^'riincc  could  tlirouji 
Friince  ni<d<c  rcMdjinuition  from  (ircat  Hritidn  forth 
loss  of  his  \-css(ds  while  vi(»liitiiiji'  the  cliiim  of  juris- 
diction iind  the  penjil  laws  of  his  own  country. 

It    is   ohvious   that  the   decision   must   have   bee; 
aji'aiust  the    Britisli  suhject,  howev<*r  lon<i'  domiciU'i 


I 


in  Trance, 


nil 


ii])on  the  ([Liestion   here 


It 


was  not  a  clann  made 


*  At  one  tiiiio  (irciit  Britain  olainied  as  .jurisdictional  "tlie  waters 
within  lines  drawn  from  headland  to  headland,  as  from  OrfordiK'ss  to 
tlu)  Foreland,  and  from  Heacliey  Head  to  Dnnnose  I'oint"  (Hall,  Int. 
Law,  )i.  1(!2).  "A  recent  decision  oC  tlie  I'rivy  Conncil  has  .illirnied  her 
jnrisdiction  over  the  Hay  of  Conception  in  Xewfonndlaml,  which  pene- 
trates forty  miles  into  the  land,  and  is  liftiMMi  miles  in  mean  breadth." 
(Id.)  In  I~^I3  Great  Hritain  claimiMl  Jnrisdietioii  over  the  waters  of  the 
^5ay  of  Fnndy.  which  is  from  (i.5  to  75  miles  wide,  and  180  to  1  U)  miles 
long,  and  nnder  that  claim  Her  Britannic  Majesty's  crniser  seized  the 
schooner  Wiinhiufilon,  tiyin.t;  the  .American  llaj;',  lor  lishinf^  in  that  hay. 
(Sec  decision  of  British  I'mpire  ajjainst  Great  Britain,  Mixed  Counnis- 
sion  cases,  nnder  Convention  of  W'^'i,  p.  170,  iufvn,  j).  108.) 


(//)  'J'lie  Countess  of  Conway's  ('asc  was  a  (da 
tor  cam])ensati(»n  ajj^ainst  France,  '.uider  the  saim 
treaty  as  in  Drummoncrs  case  (2  Knap]),  3(!7).  'W' 
Countess  was  not  a  liritish  suhject,  nor  (h)micik'il 
tliere,  and  if  she  had  been  it  did  not  aj»])ear  that  tlic 
claim  was  for  injuries  sustained  by  lier  while  eng'afi^ed 
in  liostile  Jicts  a<iainst  France  (the  country  of  her 
original  allegiance),  or  in  violating- tlie  laws  of  France  |'d 
apjdying  to  her. 

(//)  In  Livingston  r.  Maryland  Company  (I 
Cranch),  decision  by  Story,  J.,  is  strong-ly  agaiii.«*t 
the  position  of  (ireat  Jh'itain  in  cases  like  that  of 
Cooper.      It  is  not  a  decision,  however,  bearing-  at  all 


nn'iiiiist  Spain, 
l\v;i>  not  a  (daiii 
iiicuces  of  act 
Itinii  of  her  la\\ 

(0  "'rhe  v< 
|(;i>c  is  not  in  p 

\s  to  citi/eii 

tliiit    they    wei 

(ii-cat   Hritain, 

to  die  rnite(l 

'ijiirics  sutiere 

Ii  •   of   violatir 

|iU'stion,  and  i 

iii'isdiction    of 

(idvcrnment  ii 

nikcii  in  that  a 

It  is  to  be  ol 
ever  as  to  this 
tlic  Kevised  S 
1  !•.')(!,  etc.,  wer 
Stiitcs,  wdiicli  5 
ng-  all  th 
luliiiiralty,"  to 
s(i/,ure  in  the  - 
s(»vci'ci<>-n  autli 
juriMliction  to  ( 

Moreover,  t 
jurisdiction  or  i 
ill  terms  and  Vi 
tidii.  had,  as  to 
ct'tcct:  and  fin 
pnitcction  of  a 

In  the  arg'in 
Hill  tli(»  counse 

Tlie  assertion  ol 

j  pute  ;is  to  Jurisdict 

tivc  lirancii  of  the  i 


CLAIMANTS CITIZENS    OF    TIIK    UMTEl*    STA'l'KS. 


59 


iin;iiiist  Spiiiii,  tlic  ('(Hintry  of  oriji'inal  iillt'^iMiiiici',  jiiid 
h\,i>  not  ii  chiiiii  tor  injuries  resulting'  from  the  coiisc- 
|ii(ii<'('s  of  jicts  liostilc  to  that  coimtry,  or  f<»r  \  iola- 
itiiiii  of  her  liiAVs. 

(/')   "Tlic  rr//».v."     P^n•  the  reasons  just  Stilted  tliis 
lr;isc  is  not  ill  ]»oint 

As  t(»  citizens  of  tlie  I'liited  States,  then,  assuiniiii;' 
ItliMt  they  were  (htiniciled  but  not  naturahzed  in 
llirciit  Ih'itain,  what  are  their  relations  as  claimants 
ltd  the  I'liited  States  and  (Jreat  liritain  in  I'espect  of 
jiiiies  sntfered  while  sealin*;'  in  lierinu"  S(ni,  in  the 
•;i  •  of  vi(»latin<i'  the  laws  of  the  Tnited  States  in 
i(|ii(sti(»n,  and  in  defyiiiiLi'  and  attem))tin<i'  to  elude  the 
risdiction  of  the  United  States  claimed  by  that 
[(i(i\i  rnnient  in  the  waters  where  their  jirojterty  was 
t;ik('ii  in  tliut  act? 

It  is  to  be  observed  that  there  is  no  (juestion  what- 
Icvcr  as  to  this  ])ro|)ositi(ni :  '^Fhat  the  ])rovisions  of 
the  Revised  Statutes  of  the  United  States,  sections 
lli')l!,  etc.,  were  held  by  the  courts  of  the  United 
Stiitcs,  whi(di  as  the  Paris  Award  finds  were  courts 
"li!i\in<i'  fdl  the  jurisdiction  and  powers  of  courts  of*''"''"'^  ^?- 
Miliiiiralty,"  to  be  statutes  ap|)lying-  to  the  ])lace  of  Award, 
seizure  in  the  waters  of  lierin;^-  Sea,  and  that  all  the 
s((V('rei<)-n  authorities  of  the  United  States  asserted  the 
Ijuiixjiction  to  execute  those  statutes  in  those  waters.* '""^'"^  ^' 

Moreover,   that    whether   the    United    States    had 

I  jurisdiction  or  not,  those  statutes  bv  their  constnu'tiou 

[ill  terms  and  l)y  all  the  canons  of  statutory  con.sti'uc- 

tidu.  liad,  as  to  United  States  citizens,  an  exterritorial 

Mtt»<t:   and  furthermore,  were  jienal  statutes  for  the 

lirntcctioii  of  a  trade. 

Ill  the  aro-ument  submitted  before  the  Taris  Trilm- 
ii;il  the  counsel  of  Great  Britain,  at  the  head  of  whom 

1  lie  iissertioii  of  sovereignty  over  territory,  and  in  all  cases  of  di8- 
Iputc  iis  to  jurisdiction  contested  by  other  nations  rests  with  the  Execu- 
tive )ir:nicli  of  the  Goverunieut.     See  Whnrt.  Dig.,  sec.  22  and  cases. 


60  CLAIMANTS CITIZENS    OF    THE    UNITED    STATES. 

stood  the  pivseiit  Lord  Chief  Justice  of  Kuo'hiud,  lai 
down  this  projjositioii: 

The  only  right  of  i)rot(H'tioii  of  lishiny  ami  other  t'reel 
swiiiimiiiff  iinimals  in  the  liiijh  .srrrv  wliicli  can  be  exercised  lirl 
any  State  (apart  from  couv^ention)  /.>•  ,(.s'  (((/itijist  its  mnl 
nationals.  It  may  be  in  tlie  interest  of  coniuMsrce  and  tliel 
lishinft-  industry  of  tlie  natioji  tliat  all  its  tisherme'i  alikel 
should  be  nnuU;  t(!  respect  a  close  time,  even  for  niijiraioryj 
tishes,  and  even  iu  tiie  deep  sea. 

A  State  has  a  ri^rht  to  lejiislate  for  its  own  subjects  cm  tlie| 
high  seas.     (Vol.  10,  U.  S.  lieprnit,  p.  ;>(>.) 

xVnd  iio-aiii  in  the  Jiritish  counter  cnse  (\'ol,  VI1I,| 
p.  85): 

In  connection  with  this  branch  of  the  subtect,  viz,  the! 
scope  and  effect  of  the  legislation  of  otl'«r  nations,  it  is  cssenl 
tial  to  keep  in  mind  the  well-known  rule  of  international  law,! 
that  the  laws  of  a  nation  affeer  none  but  iU  mni  suhjectN,  audi 
the  subjects  of  otlwjr  nations  wiiose  jiersons  or  pro^ierty  uiayj 
be  within  its  territorial  Jurisdiction. 

And  it  ])rocee<ls  to  (|Uot<'.  ;nnon<r  other  authorities, 
the  work  of  Sir  P.  \\.  Maxwell  ns  ;i  standard  author- 
ity on  the  iiiiterpretatiou  of  -tatutei-. 

After   statiiio-   that   primarily  the   leu'islation  oi  al 
country  is  territorial,  and  that  the  laws  of  a  nationl 
ap})ly  to  all  its  --uhjects  and  all  thinos  within  its  ter- 
ritory, the  citati<»u  proceeds: 

It  is  true  tiiis  does  not  comprise  the  whole  of  the  lepiti 
mate  jurisdiction  of  a  State,  for  it  has  a  right  to  impose  its 
legislation  upon  its  subjects,  natural  or  naturalized,  in  every  I 
part  of  the  world,  and  indeed  on  .^ueli  matters  as  persouiil 
status  or  capsunty  it  is  understood  always  to  do  so:  but 
with  that  exception,  in  tiie  absence  of  an  intention  f/odWd 
I'xprcKsed  or  to  In'  nifc.rfcit  cither  Iroin  its  oirn  laiKjiiatic  or  f rim 
till'  olijcct,  or  siil)ti'ctniattrr,  or  liistnri/  oj'  llw  enactnuiit,  tlu'l 
presum])tion  istimt  Parliament  (lo<^s  not  design  its  statutes  to 
operate  on  them  beyond  the  territorial  limits  of  the  (  niteil] 
Kingdom. 

Aiul  at  pa^i'e  .S<;,  fnnn  the  jud<:?ii»*nt  of  Dr.  Lusli- 
inoton  in  the  Zollrcrc'ni,  (Swab.  U.,  |i.  !ISJ: 

Inendeavoriug  to  put  a  fiuiHtruction  on  a  statute,  it  must  I 
be  home  in  mind  how  far  tin-  power  of  the  liritish  Legislature 


CLAIMANTS — CITIZENS    OF    THE    CXITEI)    STATES. 


61 


xteiidrt,  for  unless  tlie  Avords  are  so  clear  tliat  a  contrary 
iiistrnctioii  can  in  no  way  he  avoided,  I  must  iiresmne  that 
lie  Lciiislaturc  did  not  intend  to  j^o  beyond  this  })o\ver. 

/■/(<    liars  of  (Ircaf    llritaiii  afl'evt   lirr  oini  subjects  crcri/- 
\i:lirf(—f()r('i!/iit'rs  onl;/  irhcii  iritliiii  lirr  oirn  Jurisdiction. 

\\u\  ill  tlie   Tuited  States  tlic  rule  (d"  intcniiitidual 

|;i\\. .ilwjiys  lield,  is  that  the  immicipal  laws  of  a  nation 

ixtciid  o\(M'  all  citizens  and  suWjects  everxwliere  on 

iH'cartii.     (The  Apollon.  1)  Wheat..  :U'r2:  'llnds<.n  r. 

[jiiicsriei'.  (I  ('ranch.  241,  o\errnlinu'  4  ('ranch.  ■J41.) 

And  throM^hont  the  ar^nnient  on  h(»th  sides  Ixd'ore 

111  I'aris  'ri-il)unal,  it  is  adniitte*!  that  in  so  t'ai"  as  these 

kiirutes  (d'  the  United  States  are  concerned,  they  are 

[it  ,111  exterritorial  cliaracteron  their  face,  and  the  onh' 

(lUtciit'on  \\'as  that,  heinu'  innnicipal  statntes,  thev.  of 

I'l.urx'.  could  iKtt  hind  foreigners. 

.Viid  see  Wheaton's   conclnsi(»n   that   excrx'  nation 
lii.is   jurisdiction    over   all    citizens,   \vhere\-er   found. 
ItMi'ia's  Wheat.,  §§  113,  lir).) 

\(>\v,  until  the  joint  resolution  of  Con<>Tess  of  the ^"'i.*'- Stat 

iiiicd  States,  in   l.S(i8,  (leclarin<>'  the  riu'ht  of  expa- 

|tri;ition.   which   was   shortly  followed   l)y  the  treaty 

lii'twceii  (in'at  Britain  aud  the  Inited  States  (d'  1S70, 

]iin\idin^'   f  .'•    naturalization,    it   was    ludd    l>y    both 

liivnt    Britain   and   the    rnite<l    States  that  a   citizen 

|(iiiil(l  not  throw  ((ft'  his  oriu'inal  alle;iiance. 

ill  tlie  I'nited  Stutes,  the  inclination  of  the  judiciary  has 
lliit'ii  to  tuUow  the  rule  of  the  Knjilish  (;onunon  law.  and  to 
lliold  tliat  neither  a  native  or  naturalized  citizen  can  throw 
lotl  Ills  iiUesiance  without  the  consent  of  his  State.  (Kent's 
|<  niii,.  L'4n;  8tory  on  Constitution,  III,  .1,  ZS'ote  1 ;  Wharton's 
|.Sr;itc  Trials,  6r)4;  Opinions  of  Attorneys-(Jeneral,  Vol.  VIII, 

llie  (htcti'ine   of   ori<>inal    alle<iiaiH'e  remains  the 
'iiuie  in  Ixdh  countries  in  every  res})e('t  except  in 
[tile  case  of  actual  and  formal  naturalization. 

Lord  ( 'hief  Justice  ( 'ockhurn,  in  his  "Nati<>nality" 
(|iiii;('s  214-215),  after  a  fidl  review  of  the  whole  sub- 
jt'tt.  savs:  That  "under  a  sntind  system  of  interna- 


ls. 


ii    •    i  -  i 


62 


Cl-AIMANTS- 


DITIZE3.V   OF    THE    UNITED    STATES. 


tioujil  liiw  sHt'li  ;i  "hrmy'  as  n  (loul)](^'  nationality  sliouli 
not  he  sufr-rcd  T<    <-xist:"  and  that  nothing'  sliort  mi 
actual  natr  r,iiizaTi*Mi  t-arried  out  l)y  solcnui  and  foniiiil 
act  as  tlic  .  i\v  of"  nbe-  particular  country  may  rcnuiiti 
will  lia\('  1  If  cttcc-  To  divest  the  sul)j(H't  oF  his  fornicr 
allefi'iance:    •  that  iM-niiuiciation  ot"  former  alle<>'ian('(' orl 
riiil'.ts  will  not  suHi.  e  to  <ii\e  tlu'  character  of"  citizen 
or  subject  ot"  the  c(»nntr\'  of  a(h»|)tion,  which  can  h\ 
a('(|uired  onlv  hv  th«'  act  of  natin'alizatioii  itself;  a 
that  the   effect   of  tiie  naturalization   is   j)rospective| 
old^    and   has  no   retroaitive  iJjXM'ation."     (And  sw| 
Hail  Int.  l.aw,  p.  J4n,  as  to  the  British  (h>ctrine.) 

It  is  laid  down  hy  Hall  (p.  ■J44)  that  until  a  newj 
alle<>iance  is  contracted  1)^'  naturalization,  even  siiiw 
the  naturalization  laws,  a  citizen  nuist  be  considered 
as  boun<l  by  his  alle<>'iance  to  the  i^overnment  under! 
which  he  was  born,  and  subject  to  its  laws.  "Until 
these  laws  [natvu'ali/ation  laws]  are  satisfied,  tlie  State 
into  whidi  i  ])er,son  has  innuiji'rated  can  have  uoriglit 
of  protecting'  him."      (Id.,  p.  2i)I).) 

In  the  N  lew  of  counsel  for  the  riiited  States,  the  I 
statement  j»»»t  quoted  from    Hall  is  too  ))road,  but 
the  undoulriw-d  and  universal  rule  is  laid  down  in  a  I 
sununary  of  "his  exterritorial  jurisdiction  and  sover- 
ei^ni  ri^ht   l)v  Sir  Sherston  leaker's  Halleck,  Vol.  I, 
200: 

Offenses  vicaaust  tlie  law  of  a  State,  regulating  or  prohibit 
inn  ""?/  p*irri<;ular  traile,  if  comiuitted  l)y  foreigners  within 
the  terrlt«triiiJ  Jurisdictiou  of  another  State,  are  not  punisii- 
able  by  the  tribunals  of  tlie  State  whose  laws  they  have 
violated;  />/""  if  comuiUteft  by  Its  citizens,  thci/  are  so  piininh' 
able,  no  muu--r  irltere  committed,  ichether  within  Its  otcn  limitHf 
on  the  high  iHtnn,  m  in  a  foreign  conntrii. 

A  distinction,  liowever.  must  be  niiule  between  mere  com- 
mervlal  regm<iiii>n^  pernnttiug'  or  prohibiting;  a  certain  trade, 
and  statutes  creating  a  crimiiu\l  offense,  Avith  personal  penal 
ties  expressly  applicable  to  all  the  citizens  of  the  State.  Tlie 
commercnii  domicile  of  a  party  may  sometimes  exempt  liin 
from  the  operation  of  the  laws  of  trade  of  his  own  country, 
but  while  ius  ibrmer  allegiance  continues  he  is  liable  t^) 


CLADFANTS — CITIZENS    OF    THE    UNITED    STATES 


63 


|i;i(ui'  the  penalties  of  a  criminal  ott'ense  against  bis  own 
Itdriitry,  which  penalties  may  be  enforced  whenever  becomes 
Jw^  hill  the  reacii  of  its  miiiiieipfil  laws. — (Citing:  Fo'lix, 
JDioit  Int.  I'rivc,  sections  r)l(>-o;J2;  American  Jurist,  Vol. 
JXXll,  pp.  ;Wl-38(i;  .Masse,  Droit  Commercial,  torn.  II,  sec. 
|;!S,  .';7(i,  et  Hcq.;  Belle,  Uerecho  Internacional,  pt.  I,  Cap.  IV, 
Isecs.  5,  (j.) 

Ir  need  nctt  l)e  ar<>uetl  tliat  the  absolute  riu'lits  of 

IStiilcs,  lyino"  at  the  t'oiiii(hvtiou  ot"  everytliiiiji'  else,  is 

Itlic  riu'ht  of  self-preservation  (Dana's  Wheaton,  sec. 

(!l),  and  it  would  be  a  vaiu  ri^ht  if  a  nation  could 

iKit  ])rot(M't  its  j)ublic  })ro))erty  ajiainst  its  own  citizens 

wlifiever  it  and  thev  niav  be. 

Of  course  such  laws  can  not  be  enforced  upon  the 

llivrsiiii  of  a  citizen  if  he  be  beyond  the  jurisdiction, 

ll)ut  no  one  would  deny  the  power  of  the  ^■overninent 

r(»  sci/e  u))on  his  [)roperty  for  violation  of  such  laws, 

if  rhe  property  be  found  within  the  jurisdiction  or 

lupdu  the  high  seas. 

It  is  laid  d(»wn  in  Lawrence's  Wheaton  (Elements 

»f  Int.    Law,  (Jtli   ed.,  p.  17'))  that  offenses   against 

I  the  law  of  a  State,  prohibithig  or  regulating  a  nar- 

ykiil"!-  traffic,  or  regulating   the   laws    of  trade    and 

navigation,  are  binding  u|)on  the  citizens  of  a  State 

wherever  they  may  be. 

In  Bars'  Private  Int.  Law  (Gillespie  Trans.  Edin- 
l)nrgli,  2d  ed.,  p.  135  and  notes)  the  undoubted  rule 
liii  this  case  is  laid  down:  "T/<e  State  of  domicile 
Uaiji  extend  protection  to  a  domiciled  foreigner  as  against 
Uiher  rouiitries,  except  the  country  op  original 
Iallkgiance." 

.ludge  E.  Rockwood  Hoar,  of  New  England,  former 

|Att<iniey-General  of  the  United  States  and  one  of 

tile  most  distinguished  lawyers  of  America,  in  the 

Piiirclay  case,  before  the  Mixed  Commission  of  1S71, 

iK'Uionstrated  that  legal  domicile  in  a  c«miitry  consti- 

1  tilted  citizenship  <if  that  country. 

In  a  learned  and  most  carelul  argument,  showing 


CA 


CLAIMANTS — CITIZENS    OF    THE    UNITED    STATES. 


Ill 


it^  ciratioiis  the  most  ('xliiUisti\X'  ivseaivli,  lit' 


\v;b 


('oiiipolk'd  to  adiiiit   that   i\w   couclusioii   of  all  tlie 
{ iithoritics  on  international  law  \\as  that  the  natidij 
0+  (hnnicile  ('(»nl(l   intervene  tor  the  protection  ot' 


])(MN(»n  so  (l(»inu'iliate(l  as  auinnst  every  nation  erccjit 
the  h'ttioi/  of  his  (>)i(fii/((l  ciliiO/.^liij);  tiiat  tor  eertaiii 
jairposi-:^  the  local  sovereipiry  conhl  intervene  amll 
])rote('t  him  e^<'n  a<i;(inst  that  eonntry,  but  i/crer  h' 
tlcivi/(ifi()/i  of  flic  r/f/lif-s  of  tlic  foindiii  of  his  h/rfli  »< 
rccof/niicd  hi/  iiifcnidtioi/dl  hiir.  (See  arji'iiment  ut 
Judge  Hoar  on  deinnrrer,  lieport  of  British  Agent, 
Claims  rommission  of  1S71,  p.  28<>,  and  eitations.) 

'i'he    British    ])osition  in  that   ease   was   of  eoiirsf 
strongly  for  the  e\ce[)tion  so  stated   I »y  Judge  Ihtar, 
as  ai)pears   Wythe  re))orted  arguments  of  IFer  Maj-j 
esty's  eomisel  in  the  last  citation. 

In  such  case  as  stated  hy  Kent  (I.ect.  W,  sec.  'Ih. 
p.  49):  "The  person  so  domiciled  does  not  cease  td 
l)e  bound  l»^'  tlie  allegiance  due  to  the  countr\'  of  lii> 
birth." 

It  has  been  seen  that  in  the  Barclav  Case  tlic 
demurrer  was  decided  advcrscK'  to  the  rnited  Stato 
on  two  grounds  only:* 

(1)  The  use  of  the  term  "  British  subject"  in  tlic 


convention,  aiu 


(2)  That  it  appearecl  afHriiiativcly,  as  admitted  l)y 
the  demurrer,  that  liarclax'  liiid  not  riolntcil  tJw  ollrfi- 
aiicc  line  J'roi)  lihii  to  t/ic  coiiiiti'i/  oj'liis  (foiiiiiile.  (llepoi't 
of  British  Agent,  (\)in.  '71,  p.  2!)7.) 

In  the  Koszta  case  the  United  States  asserted  in 
the  stroiig<'st  possil)le  terms  the  general  doctrine  <it 
the  allegiance  of  a  domiciled  person  to  the  nation  of 
Ills  (hauicile. 

*A  8.vn<>])8is  of  tlio  o])iiii(>n  of  the  I'oinniissioners  will  lip  foiiiul  atitage 
13  of  tile  Aiiu'rii-an  Ajieut's  Report  (vol.  6),  imper«  relating  to  the  tivaty 
of  Wa8hiii;{tou. 


'  The  point  cam 
till'  American  Sec 
Ko:(ztii  in  Turkey 
siiliject  of  AuHtrit 
Icik,  c.  XXIX,  r\ 


CLAIMANTS — CITIZENS    OF    THE    UNITED    STATES. 

It  is  the  doctrine  \vlii('h  is  so  stroiig-ly  asserted  in 
the  liritisli  argument  here.  Ihit  tlie  Hritisli  argument 
takes  no  notice  of  the  exception,  whicli  we  liave  dis- 
cussed, more  strong-ly  and  emphatically  laid  down 
l»y  international  authorities,  when  the  question  has 
collie  up  for  consideration,  than  the  <>'eneral  rule 
stilted.  As  has  been  seen,  that  exception  was  not  in 
ill  anv  of  the  cases  cited  in  the  British  argument 
ln're,  and  in  them  there  were  no  facts  bring-ing  the 
(|ii('stion  up  for  consideration. 

Ivos/ita  was  a  native-born  citizen  of  Austria,  and 
the  right  of  the  (Government  of  the  United  States  to 
protet't  him  was  asserted  ag-ahist  Turkey — not  Austria. 

What  the  [)ositionof  the  United  States  would  have 
l)(H'ii  as  to  Austria  is  stated  as  follows  by  the  Secre- 
tary of  State: 

Had  Koszta  been  within  the  jurisdiction  of  Austria  when 
he  was  seized,  the  whole  character  of  the  case  wouhl  have 
been  changed,  and  the  forcible  taking  of  him  from  the  legal 
custody  of  Austrian  oiticers  could  not  have  been  defended 
on  iuiy  ])rincii)le  of  nuinicipal  or  international  law.*  (2  Whar- 
ton's int.  Dig.,  p.  oOo,  sec.  L'03.) 

.Fosei)h  l^urns  was  a  sailor  on  an  American  whale- 
ship,  whicli  was  sunk  b}'  the  Alahama.  The  whaler 
was  American,  l)ecauso  she  was  American  owned,  and 
sailed  from  New  Bedford,  Mass.  He  therefore,  for  the 
jiur[)oses  of  protection  by  his  nation,  had  all  the  rights 
(it  a  domiciliated  citizen,  and  something  more,  tliat  of 
a  sailor  on  a  ship  which  was  beyond  (piestion  Amer- 
ican territory,  because  American  owned.  (See  Domi- 
cile authorities  sKjn'u.) 

His  claim  was  disallowed  by  the  Geneva  Arbitra- 
tidii  on  the  British  showing  that  he  was  apparently  a 

Tlio  point  came  n\)  directly  with  Austria  in  Simon  Tou,sijj;'s  cnse,  and 
tile  Aiiierii-an  Secretary  of  State,  Mr.  Marcy,  who  had  sought  to  protect 
Koszta  in  Turltey,  declined  to  intervene  to  protect  Tonsig,  an  original 
siiliject  of  Austria,  and  who  had  returned  there  temporarily.  (See  Fal- 
li'ik.  c.  XXIX,  s^  t.)    Am.  Ed. 

n   S 5 


65 


66 


NOT    NATIONAL    CLAIMS. 

l^ritisli  siil)jo('t.*  (See  West  r.  riiitc'<l  States,  cited  in 
the  Hritisli  nr;^uiiieiit  at  p.  f)()  as  tlie  Worth  case,  and 
papers  relatiii<i'  to  Treaty  of  Wasliinjitoii — "Chiiuis.") 
It  inevitably  t'oUows  that  Great  liritain  could  not 
intervene  tor  the  ])rotection  of  and  reclamation  for 
American  citizens  domiciled  in  (Jreat  IJritain  as  ajzaiiist 
the  United  States  in  cases  where  their  ]>ro])erty  hiul 
been  taken  by  the  authority  of  the  soverei;j;nty  of  the 
United  States  for  violation  of  the  municipal  laws  in 
(juestion  and  for  defiance  of  the  soNereig'U  claims  of 
that  nation. 


NOT  NATIONAL  CLAIMS. 

Tlie  British  aru'ument  seeks  to  ax'oid  this  conclu- 
sion, l)oth  in  the  case  of  Uooper  and  in  the  case  of 
the  American  citiy.ens  allejied  to  be  domiciliated  in 
Great  Britain,  on  the  <>'round  that  these  are  not  ])rivato 
claims,  but  national  claims,  in  the  sense  that  they  arc 
to  be  recovered  in  the  in(livi(hial  riuht,  so  to  s])eak, 
of  the  (Jovernment  of  (ireat  iiritain;  and  it  cites 
(p.  4!))  the  case  where  China  paid  to  the  British  Gov- 
ernment >^3,(iO(),()()0  on  account  of  debts  due  to 
l^ritish  subjects  from  certain  Chinese  merchants. 
Hence,  the  contention  is  that  no  defense  j>"oin<i'  f<^  ^ho 
ujitional  slatus  of  a  claimant  can  l)e  made. 

Of  coiu'se,  in  the  case  stated  there  was  no  Glaiiiis 
Convention  and  no  provision  in  the  treaty,  as  in  this, 
liniitin<4'  the  recovery  of  the  British  (Jovermnent  to 
the  case  of  "persons"  on  whose  account  she  might 

*An  examination  of  tho  record  discloses  that  Hums,  tlie  sailor,  whs 
deceased,  and  that  his  claim  was  presented  by  his  fatlier  as  his  lejjal 
rc](reKcntative,  who  resided  at  Mancliester,  Kuf>Iand;  but  before  the 
Mixed  Commission  of  1S71  it  was  held  in  such  a  case  that  the  right  to 
recover  dopcmled  uiion  the  national  character  of  the  deceased,  and  not 
upon  that  of  his  administrator. 

"The  Commissioners  are  all  of  the  ojiinioii  that  the  jiarticular  natiou- 
alltv  of  the  adnuuistrator  does  nijt  allcet  the  i|aestion.''  (T,  18,  cases 
109-212-205.) 


NOT   NATIONAL    CLAIMS. 


67 


lie  entitled  to  chiini,  and  no  jn'ovi.sioii  tor  tlie  Jiiiditiii<>' 
iuid  tindino-  of  "eacli"  claim. 

The   distiiu'tioii   between  lliat  case,  as  stated    ^»y  ^Ag^Bs"' ^^" 
liliudvhui'n,  ,J.,  in  the  ])assa<ie  (jnoted  at  pa^'e  49,  and       ' 
tills  case   is  broadly  drawn  in  the  Hriti.sh  arj^unient 
itsilf,   where    it    ([iiotes    from    the    Druimnond    case 
(•J  Knapp)  at  })am'e  58. 

That  was  a  Claims  Convention,  and  it  is  clearly 
slidwn  in  the  passa^^'e  (pioted  from  rhe  vice-chancellor 
that  the  recovery  (le])eiids  npon  the  pcrsoiHii  rclafioi/s 
(iixl  status  of  the  chnmaid  (pioad  thr  cla'nti. 

It  is  true  that  these  are  national  claims  in  the  sense 
tliiit  they  are  ju'esented  a^-ainst  the  United  States  by 
tilt'  nation  because  there  is  no  other  way  to  present 
tlicm:  ;nul  any  Government  owes  it  to  those  within 
its  protection  in  respect  of  its  obligations  to  its  citizens 
to  take  up  their  cause  as  a  nation,  and  this  is  the  en- 
tire floctrine  (juoted  from  Wharton  in  the  British  brief 
at  pi>.i''e  48. 

( >t'  course  it  is  the  universal  doctrine,  to  which  there 
arc  no  exceptions,  that  if  a  citizen  of  one  natii^n  com- 
[(iiiins  of  wroufj;'  done  him  by  another  nation,  his  Gov- 
criiiiient  nuist  assume  the  res])onsil)ility  of  ])resent.in<»' 
tlic  (daim.  A  (daim  on  behalf  of  foreign  subjects  of 
aiKither  Government  under  the  established  rules 
nf  international  law  is  not  entitled  to  consideration 
unless  a  demand  is  made  l)y  the  G(>vernmeut  of  the 
ctiiintrv  of  which  the  claimant  is  a  subject  or  citizen. 
(See  United  States  v.  Diekelman,  92  U.  S.,  520,  and 
2  Wharton's  Dig^,  sec.  214  et  scq.) 

This  is  the  entire  extent  of  Great  liritain's  interest 
in  the  claims. 

Under  all  claims  conventions  between  nations 
tluouij-iiout  their  history,  the  Connnissioners  under 
tlietn  have  been  occupied  for  the  most  part  in  deciding 
tor  or  aji'ainst  claimants  on  the  (piestion  of  their  })er- 
^Kiial  status;  and  this  much  space  is  devoted  to  tlif.t 


68 


VESSELS NATIONALITY    FOLLOWS    OWNERSHIP. 

subject  solely  out  of  ivs])eet  and  (lefereuce  to  the 
learned  counsel  who  are  instructed  to  present  the  point 
at  some  len<itli  at  various  places  in  their  ar<>-unient  for 
Great  Britain.* 


"UNITED  STATES  OTVNERSHIP,  "  OR  THE  BEARING  OP 
THE  REGISTRY  AND  THE  FLAG  ON  THIS  CONTRO- 
VERSY. 

The  caption  "United  States  ownership"  is  taken 
from  the  op[)osin<i,' l)rief  for  c(mvenience  of  treatment. 

It  is  not  seen,  however,  how  any  (piestion  of  na- 
tional ownershij)  can  be  involved,  as  w<mld  be  the 
case  M  'A public  sli'ip  were  in  <pie.stion. 

It  is  not  clear  how  the  le}irnin<i"  ])resented  in  the 
avg'ument  for  Great  liritain  re<^ardin<4-  the  ren:istry, 
the  fla<i",  the  ri<>-ht  of  search,  and  so  on,  is  relevant. 

Whatever  of  inviolability  from  and  conclusiveness 
ag-ainst  in([uiry  there  may  have  been,  or  whatever 
other  question  of  national  dignity  may  have  been 
inv<dved,  it  is  sul)mitted  at  the  outset  that  all  these 
considerations  have  been  set  aside  by  the  i)rovision 
of  the  convention  itself,  reserving-  to  the  United 
States  (whatsoever  the  flag,  the  registry,  or  the  dig- 
nity) the  RIGHT  to  iiKpiire  into  ownership,  especially 
with  reference  to  the  defense  resting  on  citizenship. 

The  denial  of  liability  on  the  part  of  the  United 
States,  it  is  clear,  goes  not  only  to  the  claim  like  that 
of  Cooper,  who  for  the  purjioses  of  this  controNcrsy 
was  a  citizen  of  the  United  States,  but  to  the  claims 
of  the  native-born  or  naturalized  American  citizens 
who  are  alleged  to  have  been  domiciled  in  Great 
Britain. 

It  would  seem  to  be  the  position  of  Great  liritain 
that  the  aAvard  of  the  arbitrators  at  Paris,  and  the 
present  convention,  which  was  its  direct  issue  and 

•  See  this  iii'sumcnt  pp.  82,  84,  et.  seij.,  and  p.  127. 


nussioners  i 


VESSELS — NATIONALITY    FOLLOWS    OWNERSHIP. 


C9 


(|1 


([Ui'l,  (lid  ii  wliully  vjiiii  tliin^'  in  j)n>vi(Iin<i-  tor  the 
(|uiry  into  citizciisliij)  of  owners. 
If  is  s;ii(l,  true,  the  United    States  niiiy  raise   the 
icstion  of  lijd)ility  <»n  ownersliip  and  show  that  tlie 
ictual"  owners  of  the  seized  sliips  were  in  faet  Ameri- 


ciu  citizens,  and  may  iill  tlie  entire  record  and  occu|)Y 
tlic  time  of  tlie  Connnission  for  months  in  a(hlncin<>' 
testimony  upon  tliat  ])oint,  and  Great  liritnin  may 
(iccnpy  otlier  months  witli  counter  testimony,  but  tliat 
iifti'r  all  is  done,  this  is  the  utmost  extent  of  the  ])nr- 
jxisc  of  the  provision;  that  immediately  after  the 
cxidence  shall  be  closed,  and  the  record  made,  l)oth 
sides  are  in  the  sanu^  position  they  were  befoi'e,  in  this: 
That  the  re^^istry,  the  flag',  and  so  on  are  still  a  con- 
( lusivc  [)resum})tion  on  the  (piestion  of  ownership,  i.  e,, 
tliat  tlu^  showino-  of  the  l^ritish  fla<i'  and  the  British 
register  is  conclusive  evidence  that  the  owners  of  a 
vessel  are  British  subje<'t^ 


wo 


Nat 


ions    seemet 


1    t 


o    conceive,  and 


tl 


irouiiMi 


inlimte  })ams  o 


.f  lal 


)()i\  in   neii'otiation,  in  treatA',  in 


arbitration,  and  a_i>'ain  of  ne<^'otiati()ii,  ajiain  of  treaty, 
and  a^'ain  of  arbitration,  to  have  l)een  in  the  wav  of 

■    It. 
I'll 


prodncmt''  sometliino- 


th 


that 


mi2' 


Siu'iis  o 


f  th 


le  oams 


to  tl 


lis  nar 


ht  b 
rticuh 


dl 


)e  called  a  resu 


d 


ir  end  run  tlirouiili 


th 


11  the  history  of  a  decade  and  a  half.     Hut  after  all, 
lid  notliin<>-  came  of  it,  not  even  the  r'nricHltis 


\t  is  s 
lulls. 


Onh'  vacuum,  and  no  l)irtli! 


Xow  the  positions   of  the    United   States,  on   the 


ither 


hand, 


tl 


ire  tiiese 


First.  That  the  convention  opened  the  door  to  the 
iii{|iiiry,  leaving"  the  (piestion  of  citizenship  to  be 
determined  on  the  testimony  l)v  the  (Commissioners 


!is  a  matter  of  fact,  ai 


id  tl 


le  qui 


'stion  of  lial)ilitv  on 


that  determination  of  fact  to  be  decided  by  the  Com- 
missioners as  a  matter  of  international  law. 

This  argument  has  discussed  the  questions  of  inter- 
national  law   under    this    proposition   in    res]iect   (»f 


70     *  VESSELS NATIONALITY    FOLLOWS    OWNEliSllIl'. 

Bi'itisli  subjects  (l(»nii('il(Ml  in  the  I'nitcd  States  and 
Americiiu  suhjects  alle<»'e(l  to  l)e  domiciled  in  (»reat 
liritain,  on  the  assumptioii  tliat  it  iiii<i'ht  l)e  o|>eii  t(i 
arjiuiueiit — wdiicli  is  now  (h'nied — after  estahhshin<>' 
citizensliip  of  either  cliaracter  as  a  matter  of  fact, 
that  tliere  remained  a  juridical  ([Uesti(»u  as  t<t  liahility 
under  the  treaty  and  convention  or  international  law, 

Second.  That  hy  the  Treaty  of  Washin<iton  of 
1892,  the  award  and  tin(hn;i'  of  the  tribunal  under  it, 
and  this  convention  it  was  intended  to  be  settled 
that  no  citizen  of  the  United  States  cotdd  recover  a 
claim  on  account  of  injuries  as  an  owner  and  holder 
in  whole  or  in  ]>art  of  a  vess(d. 

Words  of  such  sio-nllicance  as  "by  its  citizens,"  in 
Article  N'lII  of  the  treaty  of  1892,"  couhl  not  even 
ill  a  contract  be  set  aside  as  havinj^-  no  meaninji':  and 
they  certainly  can  not  l)e  eliminated  from  a  solemn 
treaty  betw(H'n  nations  by  a  mere  observation  on  the 
part  of  one  of  them  that  those  W(»rds  had  not  been 
intentionally  used  (o[)|)osin<>'  argument,  p.  oS,  tbl.  20), 
especially  as  the  iiupiiry  as  to  citizenshij)  is  reserved 
all  throu<ili  the  award,  the  tindin^s  of  fact,  and  this 
convention. 

It  was  clearly  the  intention  of  those  who  drafted 
the  iindin<4's  of  fact  1(»  conchuU'  this  (juestion  in  har- 
mony with  the  provisions  of  Article  VI 11  of  tlie  treatv 
of  1S92. 

The  present  lord  cliief  justice  of  Knuland  drafted 
those  tindin^^'s  of  fact.  (Seo  his  statement  to  the  presi- 
dent of  the  Court  of  Arbitration,  13  American  Reprint, 
p,  55  and  context.) 

At  pane  4S  of  tlu^  same  collotpiy,  he  made  this 
statement  to  the  arljitrators: 

The  fiiuliii}>s  that  the  vessels,  the  names  of  which  appear 
in  the  case,  have  been  seized  while  e.xercisiii^-  a  legal  right 
wonld  not  conclnde  tlie  liability  of  the  I'nited  States  to  pay 
if,  for  instan(!e,  it  turned  out  that  some  of  those  vessels 
were  owned  by  citizens  of  the  United  States  and  subject  to 
the  laws  of  the  Tnited  States. 


VESSELS — NATIONALITY    FOLLOWS   OVVNERSHIT. 

And  {tf^'jiiii,  at  ]»ii<4'C'  54,  this  MpjX'Mrs: 

Mr.  Justice  llARKAN  (oiicoftlio  iirbitriitors).  Wliat.  tluMi, 
is  Iclt  tor  future  iicjiotiation  ? 

Sir  CilAULES  ItrssKLL.  The  (piestioii  of  ainoimt. 

Mr.  Justice  TTarlan.  Ouly  of  iiinount? 

Sir  (JilAULKS  RussKi-L.  Tlic  (|ue.stion  of  anionnt.  und  .i 
lit  lie  more  tliaii  .uiiouiit;  a  (luestioii  of  amount,  spealviiifj  of 
till'  matter  in  ^[ross;  a  (luestion  of  liability  as  regards  items 
of  riiat  amount;  as,  for  instance,  the  <|iiestion  of  wliether 
ilic  claimants  ])ut  forwanl  are  entitled  to  claim — whether 
tlii-y  are  United  States  citizens. 

A[)iirt  iVom  tlu'  conclusivoiioss  of  tlic  treaty, 
award,  lindinos^  juid  convontioii,  let  it  be  teiitntivx'lv 
cnnsidered  as  '-iii  open  ([uestion  ot"  interuatioiial  law, 
and  this  will  he  considered  nnder — 


71 


NATIONALITY  FOLLOWS  OWNERSHIP. 

Assnininji'  that  the  (juestion  is  still  a  juridical  one, 
not  (•on(duded  hy  the  trea*^^  the  positions  of  (Ireat 
r)ritain  are  not  tenable  in  any  coin't  adniinisterin<i,' 
iiitciMiational  law. 

it  is  claimed  that: 

Under  no  principle  known  to  the  law  of  nations  can  it  be 
Dpiii  to  the  United  States  in  time  of  peace  to  go  behind  the 
llajf  or  register.     (Urit.  Argument,  i).  30,  fol.  •>(►.) 

And  the  same  thin^'  as  to  the  rejiister  and  the  tla<>" 
is  stated  in  other  places. 

The  learnino-  and  industrv  bestowed  on  The  l\i":lit 
of  Search  in  the  opposing-  brief  is  impressive,  for  the 
reason  that  the  conclusion  arrived  at  is  not  as  indeti- 
iiite  and  unsatisfactory  on  that  nuu*h  discussed  subject 
as  have  been  all  other  declarations  of  Great  13ritain. 

V\)  to  the  present  time  that  Government  has  never 
disclaimed  the  rio-lit,  or,  as  it  is  called  in  the  aro'ument, 
"liermission  to  visit"  a  vessel  Hying-  the  United  States 
Han'. 

The  last  official  communication  of  the  British  Gov- 
oi'iunent  to  complete  the  correspondence  there  quoted 


72 


VESSELS NATIONALITY    FOLLOWS    OWNERSHIP. 

on  tlui  stihjcct  is  the  letter  of  L<>r<1  Mnlmeslniry  of 
June  11,  l(Sr)S,  to  Lord  Xiipier  (IJrit.  iiud  For.  State 
Pjipers,  l,S57-8,  Vol.  no,  i>.  oiH),  ms  folN.ws: 

Geiioral  Cas.s  obsorvi's,  in  liis  note  to  Mr.  Napier  of  Ai)iil 
10,  IS.'iS,  that  "a  iiiercliaiit  vessel  upon  tlie  lii,«:Ii  seas  is  juo 
tected  by  iier  national  eliaritter.  lie  who  lorcibly  enters 
her  does  so  uiioii  his  own  responsibility,  ('ndoiihtedh/,  i/a 
rrsNcI  (ifi,sii)iu'.s  <t  ii<(fio)i<il  ch((i-<icler  to  ivliidi  she  is  not  ciititlni 
(iiul  is  sdiliiiji  Kiuhr  false  colors,  slie  rtiii  not  he  protected  htj 
tills  (issii)nj)llon  of  (I  iiatloniilltji  to  irhleli  she  hds  no  eldliii. 

"vl.s'  the  yleiitity  of  a  person  must  he  determined  hi/  the  o(fiirr 
bciirino  a  proeess  for  Ills  arrest  and  determined  at  the  risk  nf 
siieh  o()ieer,  so  iiiiisl  the  national  ideiillti/  of  a  vessel  be  deter- 
mined at  the  like  hazard  to  him  irho,  iloiihtiiuj  the  Jlaij  she  ills- 
j>/«</.s',  searehcs  her  to  aseertain  her  true  eharaetcr. 

'•'•There  no  douht  mai/  be  cireiimslaiiees  irhieh  iroiild  e/ofarto 
inoilifji  the  complaints  a  nation  iroiild  hare  <i  rii/ht  to  make  fur 
a  riolalioii  oj'  its  sorereii/iiti/.  If  tiie  boardinj;' ol1ic(!r  hadjust 
grounds  of  suspicion,  and  deported  himself  with  i)ropriety  in 
th(^  performance  of  his  task,  doiny  no  injury,  and  peaceably 
returninj;'  when  satistied  of  his  error,  no  nation  would  make 
such  an  act  tlu!  subjec^t  of  serious  reclamation." 

Jler  Majesty's  (iovernnienf  [continues  Lord  IMalmesbury] 
ai/ree  entireli/  in  this  ricir  of  the  ease,  and  the  question,  there- 
fore, becomes  one  solel;/  of  discretion  on  the  part  if  the  boardinij 
officer. 

So  tlint,  after  all,  it  seems  tVoiii  the  IJritish  position 
t]>e  ([iiestiou  of  rio'ht  ;ni''  >\r(Hi^'  iiiid  daiiia^i'es  W(Uilfl 
lie  one  f<»r  judicial  inciuiry  in  the  end. 

liut  the  (hsfussion  of  the  ri^ht  of  search  is,  by  the 
W'ly,  and  in  the  present  connection,  only  academic 
^J'he  (piestiou  here  is  as  to  the  r'nilif  of  Anicricait 
(lafliorifi/  to  tula'  an  Aiitvricoii-o/fitcd  ^//'qt,  n'/iatcvcr  her 
rcf/isfr//. 

'J'he  United  States  nuist  deidine  to  accept  as  inter- 
national hnv  (»n  the  subject  the  nnuiicipal  instructions 
of  Great  Britain  to  re^iiistrars  of  shi|)pino',  as  (juoted 
on  ])iio-u  43,  folio  40,  of  the  <)])posino-  aroument. 

The  rule  of  international  law  as  to  the  effect  of  reji'- 
istry  aniono-  nations  has  been  stated  by  Great  Britain 


VKSSELS NATIONALITY    FOLLOWS    0\VNEH!<HIP. 


73 


Ltdic  a   court  of  iiJitioiis.  jis  follows  ((m'IU'Nm  iVrhi- 
Initii'ii;   "British  Ciisc  jiiid  K\  idt'iici.',"  \'ol.  I,  p.  7!)): 

Till'  ('fleet  of  rejiistry  is  to  entitle  tlie  sliip  to  use  tlie 
llriii>li  Hag  and  assume  tlie  IJritisli  Uiitioual  ehaiactei'.  Tlie 
[oiidilioiis  necessary  for  obtaiiiinj;  registry,  in  the  case  <>!'  a 
lii|i  not  already  registered,  are  the  production  to  the  icgis- 
fnir  of  a  certificate  by  the  builder,  in  a  form  prescribed  by 
liiw.aiid  of  a  declaration  (also  in  prescribed  form)  that  the 
[,//(/;  /,v  Ilrilisit  oir)ii(i. 

It  is  not  the  tint]/  of  the  rcj/istrnr  to  (jinifition  or  ativcrtaiti  the 
iirriirdfi/  of  cither  the  l>i(il<lrr\s  certi/ictitr  or  the  ileclttratioii  of 
iiiiiii rxhii>.  As  (I  miiiistrritil  ojticrr^  lie  'v  IxhiikI  to  ticctpt  them 
ft'  Idiilcrcil  to  hi  til. 

I'nv  false  statements  in  the  certificate  the  builder  is  liable 

|to  ii  penaltj',  and  for  making  a  willfully  false  declaration 

tlic  (iwiier  is  liable  to  be  indicted  for  u  misdemeanor  and  to 

tloiicit  his  interest  in  the  slii]), 

liidreat  Hritain.as  in  the  United  States,  the  law  does  not 

Kisitively  recpiire  the  registration  of  any  vessel.     lUit  the 

|(lis;i(lvantagcs  and  disabilities  incurred  by  omitting  to  pro- 

|(ii!c  it  are  practically  sullicieiit  to  make  the  registration  of 

lliiiisli-owned  ships  universal. 

Till-  rej/ister,  though   in  ordinary  iine.stioii.s  arisini/  UNUKR 

I.MINICIPAL  LAW  cviileiu'e  of  the  title  of  the pi'rs  n  refjiNttred 

|((.v  oirner,  IS  NO'I"  CONCLUSIVE  in  (I  ipiestion  arisini/  lietireen 

other  jiarties,  NOR   is   it   necessarily   Sl^FFlCIENT   PROOF 

lOF  Tin;  national  character  oi'  Tin-:  ship.    A  transfer 

jti)  a  foreigner,  at  sea,  or  beyond  seas,  of  a  registered  I'ritish 

liip.  is  sullicient  to  change  its  ownership  and  the  nation- 

lity  of  the  vessel,  though  not  followed  by  any  registry. 

iTiic  law  of  registry  is  a  part  of  the  law  by  which  liritish 

trade  and  inivigation  are  regulated  for  fiscal  and  other  pur- 

hioscs;  and   a  ship  is  rei/istered  as  British  on  the  rohintarif 

Unldriifion   of  the  person   clainrhu/  to   be  owner    WITHOUT 

|i'i  ituiiOR  proof. 

Cliicf  Justice  Miuistield  (in  Cheiniuant  v.  IMcrson, 
4  Tiiuiit.,  ,'}r)7)  said: 

Tlie  register  is  not  a  document  reijuired  by  the  law  of 
[nations  as  expressive  of  the  ship's  national  character. 

Smith's  ^Mercantile  Law  (\)\).  143-4): 

^|)  ship  is  required  to  be  registered,  registry  only  being 
luc'i'cssary  to  confer  privileges  on  that  particular  ship. 


74 


VESSELS NATIONALITY    Fi  ILLOWS    ( )VVNi;iiSlllP. 

Pfirsons's  ^[;inrini('  L-nv  (Vol.  I.  p.  ,'»!»):: 

Tlic  law  is  nnwilliii:;-  In  recnf^iiizt'  in  the  tact  of  re!:i<!r 
tioii  any  other  etli<ti('ii(!y  than  ;  iiat  of  iiupartiniicfrtaiii  p;:, 
leges,  or  to  permit  the  al>.s<Mi<i   oT  that  registration  to  \t<\^ 
any  otlier  etIVct  than  nnMci  M't'veut  tliosc  ])ri    ileges  IntB 

attacliin;;'  to  tlie  sliip. 

Kent  (\i>\.  Ill,  )).  U«): 

The  refjistry  is  not  a  cUirnmient  required  by  tlic  laiv 
nations.     Tlie  re<iistry  acts  amc  x«»  b*-  considered  as  IbrniM 
h)cal  oi'  niutticipai  institution's  s.tr  purposes  of  puiilic  i»oli(y,j 

I)iit  tin-  Iwi'liuii' .Viiiericji'i  '-as^'  is  1)a' Justice  Stoiv, 
ill  15  Pet.,  r)l»^.'»43,  and  i*  r.tiiclusive.     (See  xVnalv-j 
sis,  iiij'ra,  p.  7**.) 

'I'lie  AnoraM"y-<Ten^'r}i;l  •♦("  -&e  United  States  ((Itlii 
Att<>ruey-<ie-iierals'  r>|)inioii,s,  «i49) : 

The  statutes  do  not  rfifiiirt  a  ■rs'SHel  to  be  registered  audi 
enroded:  and  It' i>inir<i  by  a  citizen  of  the  LTniitHAd  States  slie| 
is  Aineri<^aii  projM'rty,  and  jxtssessetd  of  all  the  general  riglit* 
of  tile  property  ol  an  American. 

xVnd  a;t  )»a«'e  *u}'2  he  speaks  ot  the  ri^lit  ■  ><  an  Amer- 
ican citiaen  to  piu'cliase  and  i\mn\  a  t'oreig-u  shi]),  amii 
sa  AS : 

The  sliip  so  pu;^clla^ied  becomes  cnrirlfd  to  bear  the  flag  aiul  | 
Deceive  tlM*  protei^tion  of  tiie  riiite<l  States. 

Ami  see  Wlv.wx.  Din-,  (sec.  410.  p.  !)ii3),  tor  a  full 
revitnv  ot"  the  (piestion  hv  the  author  snsvainin"'  tlie 
|)ositi(»n  taken  here  on  this  (piestioii. 

Herii-v,  the  anth(  r  of  Admirahy  Jurisdiction  ami 
Procedure,  in  a  carefully  prejiared  letter  printed  in  3 
Wliart.  L)i_L>'.,  sec.  410,  sums  up  the  international  (pii'v 
ti(rti  in  these  words — as  to  the  vessel's  character: 

Tlie  question  as  to  the  disabilities  which  tiie  ur  nicipal 
niisof  the  (iovenimentof  the  owners  might  impose  on  such 
TTPssels  did  not  concern  other  nations  nor  afi'ect  tlieir 
nationality. 


So  far  as  the  international  sidee*'  o>e(piestion  isconeerued, 
th^'  i)osition  <tf  sucsh  vessels  is  li-  ■  '.     Although  the  rigUtof 


VKSSEL- 

L'h  vessels  to  cai 
|sciis>ed  in  two  1; 
siicli  a  tpiestioi 
tsst'ls  at  sea. 
Tiic  national  bui 
psscis  of  the  nati 
|v  used  to  convej 
lie  In  \\  liicli  the  \ 
,  # 

I  The  word  •'  tlag 
Itt'! national  law 
iitiniiality  of  the 

A \ cssel  as  a  sul 
iiiility  any  more 
liy  other  nationa 
nil  (iwnershii). 

Ill  l)arker  r.  \' 

.,  ;i(i7),  Kent,  ' 

jcssi  1"  as  a  wan 

|v  !i   vessel   wl 

Irluiiin'h  not  I'e 

ItJitcs.     And   in 

lie  ])r('sent  ben 

I'd  I  iio  depart  1 

lify  i'ollows  pri 

|nii;ilit\-.      See 

|i.  2  i:'i--_>(;o-a, 

riiiL;'  the  judn'ni 
jiuii  seas:  "(Joi 
If  the  tt-rritoiy 

<l"i.ir  "The  I 
|i  tlm  (twners  d 
111'  I'liiti'd  Statt 
11  ii;i\  inabh'  wa 
|i  1)1'  liin'h  seas.' 
'  'niirts  of  ad: 
IihI  it  is  a  coniii 
[isjiKti's  as  1o  tl 
fitiniis  as  to  til 


VEStrELS NATIONALITY    FOLLOWS    OWNEKSHIP. 


7;") 


ifli  vessels  to  carry  the  ttiXff  of  tlii'  I'nitcd  i'^^•»tes  lias  been 
isciisMil  in  two  late  i»iii)eis.  there  could  lian!:,»  be  occasion 
[r  siicli  a  (|uestion.  A  vessel's  Hag  is  only  its  si'-iial  to  other 
Wsfls  at  sea. 

[Tlic  national  Imntinj;' displayed  is  a  communication  toother 
I'-jscls  (it'  the  luitionality  of  her  owner,  as  her  other  sig'uals 
k'  iiMil  lo  convey  the  name  of  the  i)rivate  owner,  or  of  the 
lie  Id  which  the  vessel  belongs. 

-  #  #  #  # 

r  word  "ria^,"  when  used  either  in  public  or  private 
ItiMiiaiional    law,    in    maritime    sul)iects,   designates    the 

iitioiiality  of  the  vessel,  oris  in  (/from  oivnrDiliip. 

#  ♦  '  '  #  # 

A  vessel  as  a  subject  of  natioimlity  is  not  (ronsidered  aper- 
iiality  any  more  tluin  any  other  chattel,  and  can  not  hiive 

liv  other  nationality  impressed  on  it  excei)t  that  arising 

|<iiii  ownership. 

In  liarkcr  r.  PIkl'iux  Insuraiice  (Joiiipaiiy  (Sjolms. 
1.  iiHT),  Kent,  C  J.,  held  that  the  words  "Ainericaii 
UmI"  as  a  wnrniiity  of  national  cliaractcr  is  fulfilled 
ly  a  vessel  wholly  -/wned  by  American  citi/ens, 
itliiiu^li  not  iv<^isteve(l  as  a  vessel  (»f  the  Ignited 
|t;itc>.  And  In  the  United  States  fi-oni  Story  to 
lie  iir(S(>nt  bench  of  the  Su})renie  Court  there  has 
Iceu  ii(»  departure  from  the  jjriiiciple  that  nation- 
lity  t'oUows  private  ownersiiip — not  ownershij)  na- 
loiialitw  See  United  States  v.  Hoo-ers,  loO  U.  S., 
ji.  2P.'i-L>(i()-;},  where  .Mr.  Justice  Field,  in  deliv- 
piii:j  tlie  judo-inent  of  the  court,  says  of  shi])H  on  the 
|ii;li  seas:   "(Jonstructively  they  constitute  a  ))ortion 

the  territory  of  the  nation  fo  irh'icli  thc'ir  otn/rrs 
l'/o;/r/."     "The  admiralty  jurisdiction  of  the  country 

the  owners  (if  the  steamer,  they  beino-  citizens  of 
lit-  I'liitiMl  States,  is  not  denied,  and  the  steamer  bein*^ 
[iiiiix  inabh' waters     *     *     *     we  hold  these  waters 

ln'  liiu'h  seas." 

"iirts  of  admiralty  administer  international  law, 
juil  it  is  a  connnon  thiuo'  for  those  courts  to  entertain 
|i"^liuti's  as  to  tluA  ownership  of  vessels,  and  other  liti- 
I'liiiiis  as  to  them,  althou<i'h  such  vessels  are  owned 


76 


VESSELS XATK  )N  ALJ  TY    FOLLOWS    OWNERSHIP. 

)>\  torciniicrs,  aii'l  slinwiiio'  jis  dociDiK'ntcii  juid  r,^,, 
tcreii   iis  t'oreio-u  sliijis:  mid   Hie  juduiiu'iit  ot'  rlnJ 
courts  or  the  title  piissiii;^'  1)\-  ('((iKh-iiiiiatioii,  is  ci 
cliisivt'  cvcrvwlu'rc. 

In  t!i(-  cjisc  citcil  ill  the  IJritisli  ar^^iiiiu'iit  (/»','.so//J 
]).  31,  tol.  "»i>j,  the  suit  w;is  a  collisioii  case  in  til 
Hfitisli  Aduiii'ally,  and  wliolly  hctwccn  I'^rcnvli  ;iiJ 
Italian  owners. 

In    the   case   ct"  the    lirpcr'/iifrDt   ('2    DcmI.,    3S 
William    Scott   held   the   (iiU'stion   of  oa\  nership  (.; 
S|)anish    dociuneuted    sliiji,   (l(»cuineiited    as   Sjiiiiiisll 
owned,  <'(»uid  he  settled  in  the  British  court. 

In  Tnited  States  r.  Jirune  (2  Wall.,  Jr.,  2(i4)it\vJ 
held  "that  t/ic  rrf/isfri/  was  not  even  /irhiid  Jarir  i^'ii 
deuce  ot"  the  owuershij)."' 

Sir  Sherston  I'.akers  Ilalleck  (\'ol.  I,  p.  438); 

The  iiati(Mial  cbaracter  of  merchant  ships  is,  "as  a  gciier 
rule,  determined  by  that  ol"  tlieir  owners." 

And  I)i'.  I'hilliinore,  in  his  Int.  Law  (\<)1.  IIl.siJ 
C(X'(JLXXX\'),  .says: 

Shii)8  are  deemed  to  helonj;'  to  the  country  under  \\] 
tUij;' and  ])as.s  tliey  navij^ate;  and  this  circumstance  is  mii 
chisivc  upon  tlieir  cliaracter.  #  *  *  Mlicu,  hoirerrr.ii 
.sail!  flidi  thtjUdj  (tii^l  jikss  (irrconclutiircon  1liecliar((ci<rt'fi.., 
shij),  the  nicaiiiiifi  is  litis:  That  the  party  who  lakrs  the  iimm 
of  them  is  hinisclj'  IioiiihI  hi/  them:  he  is  not  at  liberty,  vbei! 
they  happen  td  operate  to  his  disadvantage,  to  turn  rouiidj 
and  deny  t'.ic  character  which  he  has  worn  for  his  own  beiw 
tit  and  upon  the  credit  of  his  own  oatli  or  solemn  deoliira 
tions;  })}if  tlieij  iU>  imt  hin<i  other  partii's  as  (((jainxt  Jiim.  Otlien 
])arties  are  at  liberty  to  sliowtiiat  th^ise  are  spurious  credent 
tials,  assumed  for  the  purpose  oi'  disguising-  the  real  chanutrtl 
of  the  v«  ssei;  anil  it  is  no  incontestable  part  of  the  oidiiiiitj] 
occui)ation  of  a  prize  court  to  pull  otV  this  mask  and  exliibitl 
the  vessel  so  disguised  in  her  true  t'i;aracter  of  an  enemy' 
vessel. 

A<iaiii,  aureeinu-  with  Halleck,  Philliinore  sayss; 

But,  in  general,  and  unless  in  speiaal  circumstances,  tli'l 
national  cliaracter  of  ships  depends  upon  the  resideuuulr 
the  owner. 


VESSELS 

It  is  only  ships  a 

»(uli;ir  trade  of  a 

[iictioii  of  the  go 

till'  character  o 

Can  there  he  a 

Mild  to  a  Brit 

nil  .\inericau  ( 

jilt  registration, 
tjiHiality  of  tl 

Sn  character  am 
Tlie    (»p|)Osiii^ 

nvsident  (Irant 

I'lvsident  Gra 

lulcd  for  in  the 

Wlicii,  therefore 

1st.  under  the  tla{ 

ire  hud,  as  agaius 

Lht  to  Hy  that  lis 


l)ursuiiij4' 


On 

ivcii  in  3  What 
Y'liiia  facie  cas( 
|vn|)('rty  of  a  ci 
lie  true  and  oid 

pjieared  that  tl: 
litizens  of  the  L 

ml  die  salute  t 
p'.K-nsed  with, 
[fates  that  Spaii 
|iiit  the  Vin/inii 

ftlic  Tnited  Si 

lint  the  VirQ 
i;^nity  of  the  \\ 
;iiin>    preferre 

OitiTiiational  co 
ii(l(  r  all   claim 

tivil  >tatus  of  tl 


VESSELS NATIONALITY    FOLLOWS    OWNKRSHIP. 

[it  is  only  ships  iiiid  cargoes  engaged  in  the  privileged  and 
[culiai  tiade  of  a  nation,  under  a  special  contract  and  the 
ictidii  of  tlie  government,  that  are  considered  as  viftected 
[■  tiio  character  of  tlie  nation. 

(  ,111  there  be  any  doubt  that  an  American  sliip  may 
>iilil  to  a  liritisli  subject,  or  a  liritisli  sliip  be  sold 

nil  American  citizen,  in  any  part  ot"  the  \v«>rl(l,wit]i- 
[it  niiistration,  or  any  donbt  that  in  sncii  a  case  the 

itioiiidity  of  the  ])urcliaser  wonhl  j^ive  to  the  ship 

■>  character  and  the  j)rotection  of  liis  national  flag. 

The  (tpposiii}^-  ar<>'nment  (ptotes  the  messaj^e  of 
[resident  (rrant,  in  1S73,  in  the  case  of  the  Viiy/inius. 

President  Gnint  (h)es  not  make  the  statement  con- 

iided  for  in  the  argument,  but  says,  as  there  quoted: 

Wlu'ii,  therefore,  she  left  the  port  of  Kingston,  in  October 
St.  under  the  flag  of  the  United  States,  skc  would  appear  to 

tirrlidd,  as  against  all  powers  except  the  United  States,  the 

l^lit  to  tly  that  tiag,  etc. 

On  pursuino-  the  history  of  the  V/rf/iuiits  case,  as 
|!\eii  in  3  Wharton's  Int.  Dig'.,  it  ap})ears  that  on  the 
ti-'niiii  facie  case  presented,  the  V'ufi'niius  was  the 
lin]ierty  of  a  citizen  of  the  United  States,  who  was 


77 


But  it  having- 


|ie  true  and  only  owner  of  the  vessel. 
ppcarcd  that  the  Virf/'mins  was  not  or,  ned  in  fact  by 
litizcus  of  the  United  States,  the  a])ology  from  Spain 
Iml  tht'  sahite  to  the  Hag  of  the  United  States  were 
lisjieiised  with,  as  it  was  conceded  by  the  United 
ftutes  that  Sj)ain  had  a  right  to  achluce  ])roof  to  show 
Iiat  the  V'ny}nius\yi\ii  not  rightfulh'  car.vying  the  flag 
if  the  United  States. 


I'ut  the  Virfjinias  and  similar  cases  involving  the 
fiunity  of  the  nation  hav(^  no  beai'ing  whatever  u})on 
|l;iiiiis  preferred  under  a  claims  convention  in  an 
|iiteriiati(»na]  conrt,  when  their  rectitude  de))ends,  as 
[iiKler  all  claims  conventions,  upon  the  [xditical  or 
i\il  status  of  tlie  claimant. 


78 


VESSELS — NATIONAI.II'Y    F(  )LLO\VS    OWNKRSNIP. 

Mr.    l>;i\iir<l    corrcctlv   statcfl    tlic    law    rci^'ardin; 
iiiitiniialitx'  ill  the  passau't'  from  his  letter  (|iioted 
|)ii<i'e  42,  t'iili(»  ."»(l.  (<!'  the  British  arjiUiueiit: 


»iil 


By  the  law  ul'  i.atioiis 


tlic  citizens  or  sulijecisl 


of  a  i)articular  (fount !\v,  irlio  arc  tlir  oiniirs  of  a  slilj),  arel 
entitled  to  carry  on  such  sliip  wlicn  at  sea  the  tlaj;'  of  sii(li| 
country,  and  such  liau  is  to  he  i'e,uarded  by  all  foreign  suvf 
erei/iiis  as  the  badge  of  nationality. 

Kveii   Hall  sa\s  that  the  tiau'  is  oiiK-  the  apjianntl 
sign  of  the  iiMtioiialit\'  of  a  ship,  it'  a  shij)  of  j 


inviittl 


()\V 


iiership.     Its  iiia>t(n'  is  not  an  aiieiit  of  the  State, 


in  the  case  (»f  a  public  vessel. 

In  The  Si.sfcrs  (o  C    Kol).,  ITk");   see  3  Kent,  13ni|  'j 
Lord  Stowell  said; 

A  bill  of  sale  is  the  ]U'oper  title  to  which  the  inaritiiuel 
courts  of  all  countries  would  look.  It  is  the  universal  iiistiuT 
meat  of  the  transfer  of  sliijis  in  the  usa{;e  of  all  UJiiritiiiit| 
countries. 


riie  riau',  then,  the  outward  svndiol  (»f  owner; 


'r^1 


■■Mt 


ll'V, 


shouhl    ]>r(»perl\'    corresjiond   with    the    hill    of 
(11  .Vtty.  (Jenl.'Op.,  7-',  IX(Ui) 

An<l,  hnally,  W(^  have  on  the  (piestion  , Indue  St( 
an  authority  on  international  law,  iveeived  b\'  Bi'iti> 
])iil)lieists  and  jurists,  as  well  as  by  the  entire  woil 
as  in  the  front  rank,  where  there  iU'e  but  two — tli 
l^reat  Lord  Stowell  and  Story. 

We  have  him,  too,  on  this  (piestion,  not   as  a  ttxtl 
writer,  but  t'roni  the  bench  of  the  Supreme  Court  > 
the  United    States,  delix-eriiiLi'  the  juilu'inent  of  tliiitj 
court   as  to  the  law   in  such  ease  in  time  of  jiciice 
(See  if)  Peters,  pp.  r)l8-r)43  .snpni;  V.  S.  i\  Arniisted.)! 

Thi.s  was  the  case  of  a  Spanish  re^'isterecl  and  (W-j 
nmented  slii[».  Not  only  was  she  documented  a^  nj 
Si)anish  ship  and  as  Spanish  owned,  bat,  hx  treatyj 
l)etween  the  nations,  certain  ])rivileu'es  were  <>'U5iriiii- 
teed  ships  of  either  nati(»n  so  documented. 


V ESSE I 

ll  w  as  held  t 
lii|i'-  papers— \\ 
.|i  ownership. 
Ii;it  if  a  \-essel 

r.llil  \     Ix'lollLi"  ti 

iititleij   to  any 
iviic  (•!idea\"oriii 
rt>  under  the 
lint  it  would    b( 
he  ijisi^'uise." 
Tliis  was  in  1 
.iiiiiiients  n[)on 
iile  in  time  of  ] 
le  authoriti 
4-4.'))  of  tlie  1 1 
iv  re\  iewed  as 
(^0   1"  I'eters 
Tills  was  a  (l(» 
rt'ilitor  and  an 
lictlier  the  re^ 
cileral    statute 
wiu'i'ship  as  a<i'a 
w;is  not,  and  t 
in  a>  iontem})l; 
ic  purjiose  of  C( 
>  ;i  national  slii 
(/')   1<;  Wall, 
This  waT<  also 
I'tweena  bankr 
I'l'.     'Hem  banki 
icliii>erts,  and  1 
"!'k.     it  was  h( 
II'  -^liip  was  a  ] 
tT>.  and  the  ba 
tsii<:;iinst  the  att 
(r)  Cath^t    V. 

^!  ..  :.U4). 


VKSSKLS — NATIONALITY    FOI<Hi\VS    OWNEHSHIP 


7!) 


It    \\il.> 


\\v\>\  tliiil  the   rcuistrx'  niid  (Idcumciits — tli 


liiji'-  |)ji|)('rs — wci'c  Itiit  jiyniKi /(!•  ic  v\'u\{'\\vc  u\'  S]i;iii- 
>!i  iiw  lU'i'sliip.  ;iinl  the  IniijiUii^'t'  t»t"  the  ((iiiiT  Wiis 
t  il  :i  \'<*ssc'l  iiihU'I' those  cii'cimistjmcc!-  "sluiiild  in 
[ciilitv    Ix'loilLS'  to   the   suhjccts  ot"  illlntlicr  liiitioii    licit 


Hlllllci 


1    t« 


•,\\\.\ 


siicli   |)ri\  ilcjics,  ;iU(l   the   proprii'toi 


'ii(l(';i\'orniu'  ii\-  traiid  to  coxcr  their  own  iliey.i 


ha 


iiider  the   tl;in'  nt   Spain,  there  can  lie  iu>  douht 
t  it  would   Ite  the  dut\'  of"  our  courts  to  stri;;  oH' 


lie  II 


■^ii'Uise, 


Tliis  was  in  time  of  peace,  and    Mr  -lustice  Story 
iieiits  upon  that,  and   sa\s  tliat   tlie  al>o\'e  is  die 


olll 


rule  11 


I  time  ot  [teace 


Tlic  authorities  siihmitred  on   tliis  suhject  (at  p]t. 

-4."!)  of  the  liritish  ai'^unu'Ut  art?  not  in  jioint,  and 
ire  rc\ie\ved  as  follows: 

II)   111  Peters,  21,") — Ilosey  /•.  Buchanan. 

riiis  was  a  domestic  liti<iation  between  a  jud<i'ment 
t'lvilitiir  and  another,  and   imolved  the  (|nesti(tn  of 

I'tlier  the  re^•istr^"  of  a  transfer  of  a  ship  under  a 

Icial   statute   was  a    prerecjuisite   to   a   change   of 


^wiu 


crslii])  as  auauist  creditors 
(i  tl 


was  not,  and  the  c(»iirt  [)roceeoed  to  sa\ 


41ie  i{ 
1  ti 


ecision  was 


tliat 


that 


rcois- 


Ivv  a>  coiiteiujilated  by  the  Federal  law  was  only  for 
pie  ]uir])os«*  of  conferring'  certain  privileges  on  a  ship 


■  a  iiationa 


1  si 


iil>. 


1(1  W,m11.,  tllO,  Cra]w  i\  Kelley 


d 


lis  was  also  a  domestic  suit,  iiivol\Tn<i'  a  con 


itlict 


bftWi 


'II  a  l)aiikruptc\  assignee  and  an  attaching  cred- 

|i'i'.     'Hie  baiikrupr<'y  assignee  was  a}»poiiited  in  ^las- 

jiicliiiserts,  audi  the  creditftr  attached  the  ship  in  New 

ik.     It  was  held  ''for  the  purposes  of  the  suit"  that 

>liip  was  a  portion  of  the  territory  of  Massa(diu- 

'n>.  and  the  bankru[»tcy  assignment  passed  the  title 

linst  the  attaehuHMit.     Nothing  else  was  decided. 

0 )  Catlett    V.    The    Pacific    Company   (1    Paine's 

'94'). 


80 


VKSSIILS NATIONALITY    F(  >LL<)\V.S    OWNEKSIIIl'. 


It  iii>j)C!irs  (listiiii'tlx'  tVoiii  tlu;  decision  ot"  the  couni 
ill  the  opiiiiuu  |)viiit('tl,  tliMt  tltere  the  (|iiusti<)n  w-A 
wlictlicr  the  iniplii'd  \v;irr<uity  in  a  jxtlicy  ot"  iiisiirl 
Miicc!  tliJit  tlu;  ship  was  an  Aincricjin  vessel  liad  \)m\ 
coniplicd  with.  It  ap])eare(l,  as  stated,  tliat  she  wiiJ 
(1)  ''Oirncil  hif  AiiK-ricm/  c'liizciis ;'"  and  (2)  li  /*■«[ 
^'■coneedciV  that  it'  slie  also  lia<l  an  Ainor'eau  re^.^'istfrj 
on  board,  it  wonhl  have  l)een  a  coinplijinee  with  tliel 
warranty.  The  essential  tiling-  disputed,  evid(nitlv,[ 
was  the  (piestiou  of  Anieriean  (»wnersliip,  and  tliel 
ett'ect  ot"  reji'istrv  was  not  in  issiu*. 

If  this  case  is  supposed  to  decide  that  an  Americaiil 
reyistrv  is  conclusive  of  own(»rslii|>,  it  inav  be  said  in 
passin<^"  that  the  case  was  r'ltcd  as  she(ldin<>'  some  liolii 
on  the  subject  (and  to  that  extent  probably  it  is  Ir'iv) 
in  the  United  States  Supreme  Court  on  the  arjj^unitiitl 
in  ia  Peters,  51H,  sii})ki,  where  the  contention  tlierej 
and  hei'e  was  distinctly  overruled. 

((I)  I'he  texts  ([Uot(Ml  from  in  all  of  folio  50  (pp.j 
44-4")),  liritish  aro-mnent,  (h)  not  appear  to  be  eitei 
but  it  is  assumed  that  they  refer  to  the  Virfjimus  easel 
already  discussed  in  this  ar^-ument. 

(<')    Direct  issue  is  taken  with  the  ]h-itish  ar<i'unu'i 
(p.  45)  in  the  ])Osition  that  the  same  principle  of  con- 
(dusiveness  ai)plies  to  the  rej^'istry  of  a  ship  as  to  nat- 
uralization jiapers,  and  if  the  quotaticni  from  Wl:artoii| 
(2  Whart.  Dif^'.,  354) — from  which  the  fragment  from 
the  coiniiiunicarion  of  Mr.  Kvarts  is  taken — had  IkhiI 
continued,  it  would  have  been  seen  that  the  inviola- 
bility of  naturalization  papers  was  put  upon  entirolyl 
ditferent  ground. 

That  oT<unid  was  this:  That  naturahzaticm  wasal 
(h^cree  or  judgment  issued  b\-  a  competent  court  m 
the  Unite*!  States,  and  that  therefore  the  execiitivel 
department  of  tlie  Government  could  not  for  itself,  i^rj 
throuji'li  anv  authoritv  to  an  international  eoinniissionj 


VESSELS NATIONALITY    FOLLOWS    OWNEIiSHIP. 


81 


an 


tlh>riz('  iui  iiKjuiry  going"  l)eliiiul  tlic  judgiueiit  oi' 


iii'ii  ;i  ('(UU't. 

It  is  not  within  the  power  of  tlie  Secretary  of  State  to 
tc  a  decree  of  natuniii/ation   issued  by  a  (M>ni])etent 

The  judf-nient  of  a 


vaca 

I'llIU 


t  of  the  Tnited    States. 


hoiirt  <;rantiny  to  an  individual  tlu^  riglits  of  citi/euship  is 
(iitiiicd  to  receive  the  resitect  given  to  all  other  judgments 

Iniidercd  by  courts  of  coniiH'tent  jurisdiction,  and  if  not 
iiii]i(';K'iiable  for  fraud,  is  conclusive  :is  to  all  the  facts 
inMOssarily  i)assed  upon.  (The  Secretary  of  State  to  Mr. 
Hamlin,  1'  Whart.  Dig.,  p.  355.) 

This  doctrine  is  familiar  in  the  United  States  tVoiu 
the  leading"  case  in  tlie  Sn})reme  Conrt — "  Sjjratt's 
I  Oils.-." 

This  is  ([uite  a  ditferent  principle  from  that  whi;'h 
dd  be  applied  M  the  registry  of  u  ship,  with  which 


udicial  or  quasi-judicial   authority  has  anything 


Will 
IKl 

I  to  do. 

The  executive  position  of  the  United  States  as  to 

diMt  is  a  test  of  nationality  is  stated  in  (i  Attorney- 

(i(iicrars  Opinions  at  ]>ages  (i4!l-(!52,  and  there  it  is 

toiind  in  agreement  with  the  Judiciarx'  of  the  United 

States  that  the  test  of    nationality  is  private  owner- 

''!'•  .  ...  .       ,. 

It  follows  on  British  and  American  authority  alike, 

tliat  o\vnershi[).  and  bona  fidr  ownership,  and  not  reg- 

istr\ .  confe-rs  the  riff  Jit  to  carrv  the  flag.* 


The  jiosition  of  the  United  States  here,  as  always, 
may  ;igain  be  repeated. 

Thiir  nation  asserts  wii1ti»*>ut  qualification,  and  with 
emphasis,  that  where  the  flag  fl(»ats  over  a  ship  in  time 
>t'  peace,  anv  other  nation  invades  the  deck  under  it 
:it  iis  peril. 


'The  liritisTi  artriiineutcoufiisesrefjistry  wiHi  "sbiji's papers, "'einlirnc- 
iuf,'  iiiiil  e9i)ecially  lueaiiinji'  the  "sea  letter"  or  "  ShiiTs  pass,"  issued  by 
tlu!  Mivcieign   authority  only  after  official  investigation  as  to  actual 

""  iicrsliip. 


IJ   S- 


-G 


82 


NOT    THE    NATION  S    CLAIMS. 


'^riic  \\i\<^  and  lint  tlic  registry  sliould  be  /ii-i)ii(i/(i(i 
cvidciict'  ')f  owiiorsliij).  It'  it  should  turn  out,  how- 
cxcr,  tlia^  the  tlii<^  doos  not  trulv  ivpresent  tlio  uctiial 
owiicrslii]),  there  is  no  ^^numd  tor  reclaniatioii  on 
liehidt"  of  the  owners  wlio  turn  (»ut  to  he  actual  citi- 
zons  or  subjects  (»t"  the  nation  so  invadinj;'  the  ship, 

Wliatever  there  may  l)e  of  atfront  to  the  tiag  in 
such  a  case  is  wholly  a  question  lietween  nations, 
with  which  ]»ri\ate  jiorsons  have  nothin<>'  to  do  tuid 
for  which  they  can  make  no  })rofit. 

To  do  so  would  he  to  (;levate  the  incich'iital  infcrinr 
private  interest  into  the  })lace  of  the  paranimiut 
public  one. 

To  do  so  in  cases  wliero  satisfaction  for  offendcil 
dignity  is  due  would  l)e  to  demand  for  one  individual 
tlie  rejiaration  owin<>-  t(t  all  the  peo))le  of  a  •'•reat 
nation.  Take  the  case  of  the  British  ship  Trenf, 
where  an  American  cruiser  took  from  under  the 
British  flajj-  the  iVmerican  citi/ens  iVfason  and  Slidell. 

This  beino'  an  act  of  a  pulidic  ship  of  the  United 
States,  that  country  was,  of  course,  resjxtnsible  for  it, 

The  proceedinj^'  was  variously  designated  as  "wan- 
ton," as  a  "wanton  insult,"  "jiiratical  attack,"*  and 
so  on.  An  a])olooy  was  demanded  liy  Great  Britain 
and  a  return  of  Mason  and  Slidell  to  the  ])rotection 
of  the  l^ritish  flag.  Hut  the  suggestion  was  never 
dreamed  of  that  .Mason  and  Slidell  could  liave  had 
any  chiim  through  (ireat  Britain  or  otherwise  for 
damages,  for  their  imjirisonineut  and  treatment,  from 
the  United  States. 

The  case  of  Tlic  CaroUnc.f  The  vessel  was  an 
American  ship  under  the  American  flag  and  in  Ameri- 
can waters.  Great  Ih'itain  sent  her  military  force 
under  McLeod  into  the  territory  of  the  Unite(l  States 
and  destroyed  the  shi}). 

*Se(i  Brit.  For.  State  Papers,  "  Trrut." 

tSee  lull  bistovy  of  the  case  (1  sir  Slierston  IJaker's  Halle 'k,  !>.  47", 
aucl  Wharton's  Dig.,  v^  v\  lil,  'MiO). 


I  ireat  Bn'taii 

tlic  nets  of  Mel. 

;iTist';iction  for  1 

i|' tci'i'itory.     G 

he  territory  on 

iluciiig  evideiic 

I'driii'ii/c  was  ai( 

The  matter  a\ 

(Governments. 

ic  r.ritish  sub 

Miil  ;md  surtere 

the  iiiithoritv  o1 

I'oth  Govern 

irit'iin — assertc 

nulawful,  as  the 

h'cnt  Britain  a 

Siil)se(pientl\ 

8.")3,*  Great  1 

tnr  damages. 

It  was  held  I; 

ir  hrouu'ht  befo 

H'cause  it  grei 

which  had  lieeii 

The  case  wall 

<|UcstIons  befor( 

I'laimants  of  or 

•  111  Pn'itish  soil. 

i[iicsti(in  of  na1 

uhjcct  domicif 

ali/,c(l  there,  av 

tinii  against  Gr 

"'I'siiii    or    pro] 

'niild   it  be  ser 

.successfully  nij 

■"^tatcs  against  ( 

"iillr  acting  in 

'■rear  Pn-itain? 

*  See  Kei 


NOT    THE    nation's    Cl.AIMS. 


88 


(irciit  Hritiiiii  iickiKtwlcdn-cd  her  r(N])oiisil)ilitA-  tV>r 

lilic  acts  of  McLetxl,  iiiul  the  I'liitcd  Stiitcs  (Iciiinudi'd 

iMirist'iictioii  for  tlie  artVont  to  tlio  flaji'  and  tlio  invasion 

I  tciiitorv.     Great  Britain  asserted  the  riu'lit  to  enter 

lie  t(  ri'itorv  on  the  ;:round  of  self-j)reservation,  ad- 
iiluciiiu'  evidence  of  an  insurrection,  and  that  Tin' 
\i'(ifi>'iiic  was  aidin<^'  it. 

Tlic  matter  was  satisfactorily  adjustcMl  hetween  the 

lidvcrnnients.  In  tlie  meantime,  however,  McLeod, 
jrhf  l')iitish  subject,  had   heen  arrested  on  American 

Mill  and  sutiei'ed  a  lonj^'  term  of  imprisonment  un(h'r 
Itlic  authority  of  tlu^  State  of  New  York. 

I'tith  CiovernnuMits — tlie  United  States  and  Great 

r.iitiiu — asserted   that    imprisonment   to   liave   l)eeii 

milawful,  as  tlie  act  of  McLeod  had  heen  assunu-d  by 
|(Mcat  Britain  as  her  act. 

Siihse(|uently,  under  the  ]\Iixed  Commission  of 
|lS.')o,*  Great  Britain  made  reclamation  for  McLeod 

t'lir  (lamaii'es. 
it  was  held  by  the  British  umpire  that  it  could  not 

lie  hrou^i'ht  before  the  commissioners  as  a  [)rivateclaim, 

litcause  it  o-re\v  out  of  a  })urely  national  ([uestion 
|ulii(  li  had  been  adjusted  between  the  two  countries. 

The  case  will  serve  for  further  illustration  on  the 
|(|ii(stions  before  these  High  Connnissioners  as  to  the 
jiliiiiiiants  of  original  American  alh^giance  domiciled 
Im  liritish  soil.  Aside  from  the  adjustment  of  the 
^iiucstion  of  national  affront,  su])j)Ose  that  a   15ritish 

siihjcct  domiciled  in  the  United  States,  and  unnatu- 
|i';ili/,((l  there,  while  in  the  act  of  aiding  the  insurrec- 
jtii'ii  against  Great  Britain,  had  been  damaged  in  his 

iK'isoii  or  property  rights  by  McLeod's  invasion. 
|<'niil(l  it  be  seriously  contended  that  he  could  have 
|siic((ssfully  made  recdamation  through  the  United 
iStatcs  ngainst  (ireat  Britain  for  his  injuries  suffered 
jwliilc  acting  in  violation  of  his  original  allegiance  to 
I'lvat  Ih-itain? 


*  See  Report  ol'  Ajimt  of  the  lluited  Stiitos,  311. 


H4 


NOT    THK    nation's    CI-AIMS. 

( )l"   sil|i|i»»s('   'I'll!    CmoliiKi   llild,  MS  ;l    liiJlttcr  (if  t;iil. 
tiinicfl  (»iit  t(i  Ix'  tlic  |)rti|)<'i'ty  ot'  sticli  liritisli  siilijci 
lcu;ill\      (Idliiicilcd     ill     the     I'liitc*!    States,    or   of  aij 
AiiiciMcMii  citi/.cii  lci;iill\'  (loiiiicilc'(l  in  (Jrcat    IJritiiii, 
('oiild  cither  liiiNc   iiindc   rccliiinfitioii   jifijuiist   (mc;ii 
HritJiiii  tliron;;li  tlic  I'liitcd  Stiitcs? 

(  >ii  the  distinction  lictwccn  (picstions  ot"  the  kiinl 
iU'isin^'  hctween  niitions  in  respect  <»t"  the  in\  iohdiilitv 
of  national  territory  iuid   the  enil)U'in  of  the  nnti(iii;ii| 
di^nit\',  iUid  tliose  in  respect  of  the  chums  of  indiviil- 
Uid  citi/ens   presented  by  (»ne   n.ition  for  |)erson;il  m 
propei'ty  injni'ies  ji«i'ainst   another,  it   is   hi'oadly  iiml 
well  drawn   l>y  connsel   in   the  case  of  McIInjih  iim! 
others  aji'ainst   The    rniteij  States,  before  the  Mixiil 
( 'onniiission  nnder  the  Treatx'  of  \Vashin;;ton  (rciHnil 
(»f  British  a;i('nt,  \).  5(J7,  Appendix  No.  7,  ")-*),  Jis  td 
lows: 

The  (lucstion  before  this  Coininission  is  not  whether  Great! 
Britain  has  snil'ercd  grievance  or  insult  at  tiie  liands  of  tliel 
United  (States  in  the  case  in  whieli  rechunation  is  soiif;lit.l 
If  it  were  so,  it  wonld  be  entirely  innmiterial  whether  tbtj 
intestate,  iSheniian,  were  a  Uritish  subject  or  no,  he  haviii[,'| 
been  arr(!stcd  on  liritish  soil.  The  injury  to  (Ireat  Ihitai 
was  by  the  unlawful  invasion  of  her  territory  and  the  takiDg| 
then(!e  by  force  of  a  person  under  the  protection  of  her  Iaff>. 

Whether  that  ])erson  was  an  American  citizen  or  Britisli 
subject  is  of  no  iin])ortance.     She  has  the  same  right  of  com 
plaint  against  the  IJnited  States  for  the  unlawful  and  wrong  I 
ful  arrest  of  an  American  citizen  upon   her  soil,  and  iiisj 
removal  by  force  from  the  protection  of  her  laws,  as  slie| 
would  have  for  the  same  treatment  of  a  Uritish  subject. 

But  it  surely  can  not  be  contended  that,  by  reason  of  siulil 
injury  to  the  sovereignty  of  (ireat  Britain,  Sherman,  it' iol 
fact  an  American  citizen,  would  have  a  standing  before  t!iis| 
tribunal  to  make  reclamation  under  the  treaty. 

Jle  would  have  to  stand  upon  his  character  as  a  Britisli 
subject  and  u]  on  that  only  ;  and  it  would  be  oidy  by  virtiiel 
of  such  national  character  that  he  could  make  reclamationl 
here. 

This  })articular  claim,  asa})})ears  by  the  report,  i.e. 


'Paliameutary  Papers,  North  America,  No.  2,  1874. 


Not  tiik  nations  claims. 


85 


Ii;it  >>(  .Mrs.  SlR'niiJiii,  was  imaniiMoiisK-  disallowed 
i\  the  ( 'ouiiiiissioncrs. 

The  very    »oiiit  was  daltoiiitely  statcil  and  (Iccidcd 
i\    liiii'oii    l»  aiic,  tlic   iiiii|)irt',  ill   claims    !)  1   and   l*.*), 
';iiii|il(cll  and  others  r.  Spain,  under  the  S|()inisli  and 
lAiii'ricaii  ("oininissioii  of  b'elirnary  12,  INTI. 

Tiic   ship   Miirif   LoirrI/   was   under  the  Anicricaii 

hii:  iiiid   on  the  liij^li   seas,  duly  docniiieiite<l  as  an 

Aim  rican  shi|».     The  niiipire  finds  distinctK'  that  the 

|\i(ilation  (tl' the  lla<j'  was  an  otleiise  a<>aiiist  the  soN'er- 

•iunt\    of  the    United   States.     The  claim    was   pre- 

l»(iit((|  liy  the  United   States,  as  claims  are  presented 

Ik  iv.  as  one  on  account  (.f  the  (»wner. 

Tlie  uinpiro  says: 

Tlic  umpire  can  not  be  leK'itiiniitely  (lallod  upon  to  treat 
this  as  a  case  of  tlie  United  States  aj^aiiist  Spain  having  for 
Its  (liioct  object  a  suitable  reparation  for  tlie  offended  dignity 
III'  I  heir  Hag. 

Ill  such  a  case  the  regularity  of  the  capture  would  con- 
stitute the  principal  question  to  be  considered — the  per- 
-oiiaj  situation  of  the  owners  of  the  property  becoming 
siili(M(linate. 

Hut  no  HHch  case  of  the  United  States  af/ainst  Spain  has  been 
yir  ciiitlil,  in  the  opinion  of  the  umpire,  propei'lij  he  presented 
III  this  frihiinal. 

\\  another  place  he  says  that  it  is — 

1 1  relevant  under  the  circiinistanctes  of  this  case  to  state 
how  far,  if  at  all,  the  acts  of  the  Spanish  forces  were  uiian- 
tliorized  by  international  law,  and  such  as  to  create  a  claim 
'111  the  i)art  of  the  United  States  against  Spain  hi  behalf  of 
the  oH'oiided  sovereignty  of  their  Hag. 

The  claim  was  therefore  dismissed  on  the  g-round 
rli;ir  althonji'h  the  seizure  was  outside  of  the  jurisdio- 
floii  of  Spain,  and  on  the  hi<4-li  seas,  yet,  as  it  trans- 
\wvi\  that  the  o/citers  were  en<j;'a<>-ed  in  an  enter})riso 
unlawful  as  against  Spain,  the  United  States  could 
in»t  recover  on  their  account  under  the  Claims  Con- 
vention. 


IMAGE  EVALUATION 
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Sciences 

Corporation 


73  WIST  MAIN  STRUT 

WMSTBH.N.Y.  145M 

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86      CONCLUSION    ON   EFFECT   OP   DOMICILE   AND   CITIZENSHIP. 


CONCLUSK 


CONCLUSION   ON   THE   QUESTION  OF  AMERICAN  CITl| 
ZENSHIP  AND  OWNERSHIP. 

The  spccijh'  vUiims  cliuiiiaited. 

Tlie  Cooi)er  claims:  The  Grace,  Dolphin,  An)iaBn\\ 
and  till'  Sdjiirard. 

The  AU'xaiuler  Frank  chiinis:  Tlie  Alfred  Adami 
liJacli  iJiuiiKDid,  seized  July  11,  1881),  and  the  Libj. 

The  Andrew  J.  Bechtel  claims:  The  Carohna  an 
Fathjindir. 

'^I'he  Daniel  McLean  claim:  (The  larfi'cr)  Tr'u(m\i\ 

The  Alexan«ler  ]\IcLean  claims:  The  Onward  ai 
Far()ur'ife. 

The  t"ore<;(»in^'  ships  were  all  seized  in  the  yeaiJ 
18«6,  1.S87,  and  18«;>,  and  appear  as  follows  in  tlij 
schedule  of  British  claims  filed  at  Paris  (pp.  1  to 
inclusive),  as  referred  to  this  Connnission  under  tlitl 
convention  as  owned  and  claimed  for  as  folk>ws: 

'Y\\(i  Cooper  claims: 

As  to  the  Grave,  DoJphtn,  Anna  Heel-,  and  Saywar(i\ 
the  entire  ownership  and  entire  claim  for  compeiisatidDl 
for  the  seizure  are  in  Thomas  II.  Coo})er. 

The  Alexander  Frank  claims: 

As  to  the  Alfred  Adams,  GuiuvAw,  ow'uav,  his  partncr.l 
the  said  Frank,  being-  e(jually  interested  with  CTUtimnl 
in  the  results  of  the  sealiu"-  voyage. 

As  to  the  lilaek Diamond,  "registered"  owner  Morris j 
Moss. 

As  to  the  LUji,  "registered  "  owner  Moiris  Moss. 

The  Andrew  J.  Bechtel  claims: 

As  to  the  Carolena,  the  entire  ownership  in  Munsie.l 

As  to  the  Pathfinder,  ownershij)  haif  in  the  partner! 
ship,  and  a  quarter  each  in  the  individual  membei-jj 
of  the  firm  of  Carne  &  Munsie. 

The  Daniel  i\IcLean  claim: 

As  to  the  larger  Triumph,  21  shares  in  Edgar  Crowl 
liaker;  22  shares  in  Daniel  McLean,  and  21  shares| 
in  one  Gibson  and  Blackett. 


CONCLUSION   ON    EFFECT    OF   DOMICILE    AND   CITIZENSHIP.       87 


The  Alexander  McLean  claims: 
As  t<»  the  Omiard,   Charles  S})rin}i'  as  sole  owner 
^ind  claimant. 

As  to  the  Favourite,  Charles  Spring  as  sole  owner 
liiml  claimant. 

Ir  appears  by  the  testimony  cited  in  this  record 
Itliiit  the  United  States,  under  the  rij»lit  reserved  to 
|tli('iii  1)V  the  Paris  Award  and  this  Convention,  in 
(•(nitradiction  of  the  above  schedule  as  presented  at 
li'aiis,  have  shown  actual  ownershij)  in  American 
[(itizcns,  as  of  the  time  of  seizure,  and  the  actual 
|claiiiiants  at  the  time  of  the  Convention,  as  follows: 
The  Alfred  Adams,  Ldij,  and  the  lihtvh  Dknuoud  in 
|Al('\ander  Frank,  an  American  citizen. 

The  (Jurolena  and  Path  finder  in  whole  or  in  part  in 
A.  .1.  Mechtel,  an  American  citizen. 

Tlie  Trbr.nph,  22  shares  out  of  64  in  all  in  Daniel 
McLean,  claimed  to  be  a  ])olitical  and  civil  citizen  of 
I  the   Tnited   States,  and  in  any  case  a  civil  citizen 
Iddiniciled  in  the  United  States. 

The  Onward  and  the  Favourite  one-half  in  Alex- 
laiidcr  McLean,  an  American  citizen  domiciled  in  the 
I'liitcd  States. 

It  luav  be  stated  in  this  connection  as  the  rule  in 
siicli  cases,  to  which  there  have  been  no  exceptions 
uikUt  prior  commissions,  and  as  a  i)roj)ositi(ai  which 
liiiries  its  own  demonstration,  that  to  entitle  that 
nation  to  make  reclamation  for  anyone  as  a  person 
"ill  whose  behalf  Great  Britain  is  entitled  to  claim 
(•tnii|tensation  from  the  United  States,"  the  burden  is 
iipon  that  nation  to  establish  at  the  very  outset  two 
tliiii^i's: 

First,  and  before  all  else,  that  at  the  time  of  the  Con- 
niilioii  a)id  of  the  presentation  of  the  claim  the  claimant 
was  under  the  protection  of  Great  Britain  as  a  citizen, 
with  a  lejial  domicile  in  the  dominions  of  that  nation 
or  not  in  the  United  States; 


1    It 


|i    ! 


88      CONCLUSION    ON    EFFECT    OF    DOMICILE    AND   CITIZENSHIP. 


CONCLUSK 


And  second,  it  must  ulso  be  established  that  at  the 
time  of  tlie  iiijuiy  of  wliich  compUiint  is  made  the 
person  wps  under  tlie  i)roteetion  of  Great  Britain  as 
a  citizen,  and  domiciled  within  her  dominions,  or  not 
in  the  United  States,  or,  as  the  equivalent  of  domicile 
and  citizenshi]),  was  on  board  a  ship,  as  one  of  the 
<ifficers  or  crew,  owned  by  a  British  subject  in  British 
territory  or  on  the  hiii^li  seas. 

Both  conditions  must  concur. 

It  need  not  be  arj»ued  that  a  i)erson  who  mav  have 
been  injured  by  a  nati«»n  can  not  afterwards  become 
naturalized  or  domiciled  in  that  nation,  and  thus 
become  a  political  or  civil  citizen,  or  both,  and  there- 
after invoke  the  aid  of  the  country  (►f  his  original 
citizenship  against  the  nation  of  his  existing  citizen- 
ship. 

And  so  the  Convention  provides,  Article  I,  that  the 
persons  for  whom  reclamation  may  be  made  by  Great 
Britain  nmst  be  persons  who  then,  at  the  time  of  the 
convention  (and  as  held  in  f>ther  Commissions,  at  the 
time  of  the  jn-esentation  of  tlw  claitn),  were  under  the 
protection  of  Great  Britain  in  virtue  of  a  claim  of 
either  civil  or  political  citizenship,  as  above  defined. 

Here,  again,  the  incongruity,  not  tf»  say  absurdity, 
of  Great  Britain's  ])osition  as  to  Cotiper  is  manifest. 

A  resident  and  a  civil  citizen  of  the  United  States 
since  18r)4,  with  the  courts  open  to  him  as  to  an 
American  native-l)orn  citizen,  enjoying  the  })rotection 
of  its  laws,  without  returning  t<»  his  country  of 
original  citizenship  to  present  tin's  claim,  he  remains 
a  citizen  of  the  United  States,  and  instead  of  appeal- 
ing for  relief  for  his  alleged  wrongs  to  that  Govera- 
ment,  (n*  its  courts,  he  invokes  a  foreign  nation  to  aid 
him  in  recovering  from  the  United  States. 

The  rule  is  undoubted  and  universally  acknowl- 
edged that  the  recourse  of  a  domiciled  ))er8on  for 
injuries  against  the  Government  of  his  domicile  is  in 


CONCLUSION    ON   EFFECT   OF   DOMICILE    AND    CITIZENSHIP, 

I  till'  roiirts  of  that  eoimtiy.     The  principle  is  stated 
ill  Wharton  as  appHed  in  our  rehitions  with  Great 

l^ritiiiii: 

A  t;itizen  of  the  United  States  residiug  in  Canada,  whose 
property  there  situatti  iias  been  destroyed  and  piUaged  by 
IJritisli  troops,  must  iirst  seeic  redress  from  the  tribunals  of 
the  country  under  whose  laws  he  has  settled.  (2  Whart. 
Dig.,  sec.  241,  and  see  sec.  226.) 

Kcuworthy's  Case,  Mixed  Commission,  1853; 
Iliilly  L't  al.  Conmiission,  1871;  see  6  Papers,  etc., 
Wiisliiiifi'ton,  pp.  19-20;  Anderson's  Case,  id. ;  Boyd's 
Ciisc,  Mritisli  Agent's  Report,  p.  12. 

As  lieretofore  seen  in  such  cases,  there  can  be  no 
liTound  for  intervention  by  tlie  country  of  original 
allegiance  unless  there  be  discrimination  as  against 
the  person  because  of  his  political  nationality  as  be- 
tween him  and  citizens  of  the  country  of  his  domicile. 

It  appears  by  the  authorities  hereinbefore  cited  on 
the  sul)ject  of  domicile  that  the  ])resumption  is  that  a 
citizeu  of  a  country  has  his  residence  and  legal  dom- 
icile in  the  country  of  his  political  citizenship,  and 
that  the  burden  to  establish  domicile  in  any  other 
(ountr}'  is  u})on  the  person  alleging  it.  The  burden 
may  he  at  once  shifted  by  showing  actual  residence, 
lis  lias  Ijeen  seen,  but  if  there  be  anything  in  the 
IMtiiit  made  in  the  opj)Osing  argument  as  to  Frank, 
the  McLeans,  and  Bechtel  on  their  alleged  domicile 
ill  Great  Britain  against  the  contention  of  the  United 
States  to  the  contrary  as  heretofore  ])resented,  then 
the  burden  would  certainly  be  upon  Great  Britain  to 
establish  the  fact  of  domicile  conclusively. 

*>ii  the  record  there  is  no  pretense  of  the  proof  of 
Frank's  domicile  in  Victoria.  There  is  no  such  thing 
ii>*  a  domicile  for  purposes  of  trade  without  residence, 
Ivesidcnce  and  home  is  the  STipreme  test  of  domicile. 
fllalleck,  Ch.  XXIX,  sec.  13  "(Am.  Ed.),  and  cases. 
iliillimore-Domicile,  sees.  221,  224,  25G,  258.) 


89 


ty    :   I 


Si     f  I 


i    'i 


90      CONCLUSION    ON    EFFECT    OF    DOMICILE   AND    CITIZENSHIP. 


( ONCLl    1 


It  ai)[)e.n*s  that  lie  was  a  partner  of  Gutmaii,  but 
there  is  no  proof  whatever  that  he  was  a  resident  of 
Victoria,  as  lie  was  not.     (Record,  1093,  line  50.) 

(}.  In  November,  188S,  were  you  a  reaideut  of  Victoria? 

A.  I  believe  1  was;  am  not  quite  positive  about  the  time. 
1  went  to  San  Francisco  eitlier  tlie  latter  part  of  1888  or  early 
part  oi"  1889,  and  I  stayed  there  several  months. 

This  is  all  there  is  beariii*^  on  residence. 

Ap})ended  hereto,  (page — )  entitled  "Appendix  2," 
is  presented  all  the  testimony  in  the  record,  and  even 
item  of  it  bearing  upon  the  citizenshij)  or  residence 
of  Alexander  Frank,  Andrew  J.  Bechtel,  Daniel  Mc- 
Lean, Alexander  McLean,  and  Thomas  H.  Cooper. 

As  to  Bechtel,  there  is  no  conclusion  upon  his  tes- 
timony, because  he  contradicts  himself  directly  by  his 
several  oaths,  and  is  shown  hereafter  under  the  head, 
"Carolena,"  to  be  unworthy  of  credit.  Falsus  in  Urn, 
falsus  in  (mutihus.  His  hotel  business  is  no  evidence 
of  domicile.  See  authorities  supra  i)rox.  In  an  affi- 
davit he  has  sworn  that  he  was  at  one  time  a  resident  of 
California,  and  afterwards,  in  an  affidavit,  as  in  his  tesii- 
mony  here,  covering-  the  ])eriod  of  his  affidavit  in  Cali- 
fornia, he  swears  that  he  was  a  resident  of  Victoria.  His 
affidavit  to  the  contrary  in  Victoria  is  not  evidence  for 
him,  and  his  admission  of  residence  in  California  is  evi- 
dence here.  From  the  witnessbox  at  Victoria,  through- 
^pendix  2.^*  ^^^  ^^^^  examination,  he  was  dumb  on  the  (juestion  of 
his  residence  in  California;  while  Munsie  testifies  to 
the  time  when  Bechtel  was  living  in  California,  in  cor- 
roboration of  the  admission  by  affidavit.  His  owner- 
sliij)  of  real  estate  is  no  evidence  of  domicile.  (Sir 
W.  Scott  in  The  Dree  Gchroeders,  4  Rob.,  p.  235.) 

There  is  no  evidence  that  either  Frank  or  Bechtel  were 
domiciled  in  Great  Britain  at  the  time  of  the  Conventioi. 
Daniel  McLean,  as  appears  by  the  record,  became  a  nat- 
uralized citizen  of  the  United  States  on  October  5, 1882, 
and  he  became  such  under  the  Naturalization  Treaty 
between  Great  Britain  and  the  United  States  of  1870. 


(ONCLl    ION    ON   EFFECT   OF    DOMICILE   AND    CITIZENSHIP.      91 

lie  could  not  HUiTeiuler  tliat  citizeiiHliii)  and  retuni 
to  Ills  alle<»iaiice  to  Great  liritaiu  exc'('})t  as  pro- 
vi«l(il  in  tliat  treaty,  and  liis  form  of"  l>e(',oniin<>"  natu- 
iiili/('(l  ill  Gr(^at  Britain  on  ()ctol>er  l(i,  1H8(I,  was 
im-lVt'ctive. 

Tliere  is  not  a  word  as  to  liis  residence  in  Victoria 
ill  the  record,  ])nt  there  is  a  statement  of  his  resi- 
dence in  San  Francisco  in  l)sn2,  and  the  testimony 
of  Lidty  tliat  Daniel  McLean  ajipeared  at  Victoria  ***^'' '**9' 
ill  1.SS3  as  one  of  the  crew  of  the  American  vessel 
the  Citii  of  Salt  lUcfio.  Sc..App.2. 

As  to  Alexander  McLean's  American  citizenship 
tlicre  is  no  (juestion :  and  while  the  testimony  as  to 
liiiii  is'tlie  stroimest  in  the  record  as  to  anv  residence 
ill  \'ictoria  at  the  time  of  the  seizure  of  the  ships 
he  was  interested  in,  there  is  no  <]uestion  whatever  that 
tor  (I  hui<>'  time  prior  to  tlie  Convention,  at  its  date, 
!iii(l  ever  since  he  has  had  his  domicile  in  the  city  of 
San  Francisco. 

<  )n  the  question  of  burden  of  proof  to  establish  the 
ichition  to  a  person  which  would  enable  Great  lirit- 
aiii  to  niake  ieclamation,  it  is  settled  by  the  decisions 
uii(h'r  all  the  Commissions  heretofore  referred  to.* 

It  follows,  that  if  Great  Britain  shall  sliift  fnun  the 
;in»iind  heretofore  taken,  that  ownership  in  that  nation's 
pnhtical  subjects  is  concluded  by  showing  a  ship's  reg-- 
istcr,  and  now  claim  the  ri<»ht  to  protect  American 
citi/cciis  as  aj^ainst  their  own  country  because  of  their 
(hniiicile  (a  |)ro[)osition  never  heard  of  before  except 
in  tlie  aroument  here),  the  change  should  start  from 
the  postulate  as  to  them,  that  their  domicile  by  resi- 
(k'licc  has  been  conclusively  shown,  both  at  the  time 
ttf  the  seizure,  and  at  the  time  of  the  treaty  and  pre- 
sontjilion  of  the  claims. 

The  (|uestion  remains  as  to  the  eflfect  of  part  own- 
cisliip  by  au  American  citizen  with  a  British  subject. 


"  Se  argument— citation  of  Sir  Roiindell  Palmer,  papers,  etc.    Treaty 
ofWasliington,  vol.  3,  p.  25,  last  paragraph  cited. 


Ll! 


92      CONCLUSION    ON    EFFECT   OF   DOMICILE    AND    CITIZENSHIP. 


If  joint  owners  or  partners,  the  wliole  claim  nuist  fail 
beyond  (juestion. 

A  recovery  can  not  in  such  case  be  liad  for  a  nioietv 
by  tlie  rules  of  international  or  common  law. 

The  right  to  the  protection  of  this  Government  may  be 

acquired  by  birth,  by  naturalization,  or  in  some  cases  aud 

for  some  purposes  by  domicile  in  the  United  States.    Xo 

other  mode  occurs  to  me,  nor  do  I  now  perceive  the  authority 

of  an  officer  of  tiiis  Government,  except  in  virtue  of  a  treaty 

Mr.Fisb  Sec.  ^^'  other  positive  legislation,  to  bring  a  new  subject  withiu 

of  state,  the  sphere  of  its  obligations.    Least  of  all  can  I  discern  auy 

to  Mr.  De  faculty  in  a  private  citizen  to  spread  the  protection  of  liis 

Inst     la-  f^overnment  over  a  third  person  by  adopting  him  as  a  part- 

'  ner  in  a.  commercial  establishment  in  foreign  parts. 


COMPENSi 


pan. 


Whatever  the  rule,  however,  on  this  subject,  the 
United  States  desires  to  ur<re  it  only  as  against  those 
persons  who  have  suifered  their  names  to  be  used  by 
American  citizens,  or  have  permitted  the  investments 
oi'  American  (!itizens,  with  them  jointly,  having  the 
object  in  view  to  aid  such  citizens  to  violate  the  laws 
of  their  country  under  cover  of  such  arrangements, 
and  have  befouled  their  consciences  in  the  effort  to 
sustain  the  frauds.  This  objection  is  not  urged  by 
the  United  States  as  against  the  owners  of  the  Tri- 
umph, in  res|>ect  of  the  shares  in  the  former  held 
by  Mr.  liaker  and  his  associates,  who  were  British 
subjects,  and  in  respect  of  the  interest  in  the  On- 
ivard  owned  l)y  Mr.  Spring,  who  was  also  a  British 
subject.  If  it  should  seem  to  the  Connnissioners 
that  there  is  anything  of  compensation  to  be  found 
due  on  account  of  the  Favourite  on  the  claim  as 
finally  testified  to  by  her  owners  at  Victoria,  Mr. 
Spring's  interest  should  be  treated  like  that  in  the 
Onward.  In  such  cases,  however,  the  question  of 
jurisdiction  remains  for  the  Commissioners  to  decide, 
as  it  can  not  be  waived  by  the  counsel  for  the  United 
States. 


S>io  the  contiu 


DAMAGES — PROSPECTIVE   CATCH. 


98 


COMPENSATION,  OR  THE  MEASURE  OF  DAMAGES. 

I'lidoi-  this  head  it  i.s  jn'oposed  first  to  t'onsider  the 
([Ucstiou  of 

J'r«tt<pcct'ue  catch  aud  /o.svv  of  catch* 

Tlie  theory  of  all  hiw  on  tlie  wuhject  of  the  h>Hs  of 
]i(  rsoiial  })roj)erty,  is,  tliat  tlie  i)arty  de^jrived  of  it  or 
iil);in(hniin}j;'  it  to  tiie  converter  may  iinniediately  suj)- 
jily  its  jdaoe  in  the  market  witli  its  money  value  if 
lie  sees  fit;  and  therefore  his  measure  of  ree(>very  is 
limited  to  the  value  of  the  ju'operty  lost. 

The  following-  propositions  are  maintained  under 
the  present  convention: 

{(hie)  ; 

The  claim  for  prospective  catch  is  settled  advei'sely 
to  (Jreat  JJritain  by  what  has  been  seen  is  conven- 
tional or  ])ositive  international  law,  fixed  and  binding' 
oil  both  nations,  viz.,  a  decision  of  the  precise  question 
on  analogous  facts  by  the  adjudication  of  the  Tribu- 
nal of  Arbitration  at  Geneva. 


{Two) 

The  claim  for  prosi)ective  catch,  prospective  prof- 
its, and  the  like,  in  cases  of  manne  torts  or  captures 
i»n  the  high  seas,  however  tortious,  has  never  been 
allowed  by  any  tribunal  or  court  administering^  inter- 
national law,  or  by  any  authoritative  judicial  judg- 
ment of  either  country,  whether  administering  inter- 
national or  the  municipal  common  law. 

And  of  these  in  their  order. 

Sic  the  contiugeucies  and  uncertainties  of  pelagic  sealing,  p.  \~1,  infra. 


94 


DAMAGES — PROSPECTIVE    CATCH. 
{ONI':.) 

Tlic  Jinlf/iHt'nt  (if  Genent. 

liy  the  treaty  of  \Vasliiii<?t()ii,  Article  VI,  it  was 
provided  as  follows: 

In  deciding  the  matters  submitted  to  the  arbitrators,  tliey 
sliall  be  governed  by  the  following  three  rules,  which  are 
agreed  upon  by  the  high  contnieting  parties  as  rules  to  be 
taken  as  applicable  to  the  csise,  amJ  by  such  principles  of  inter- 
national law  not  inconsistent  thcrewitli  as  the  arbitrators  shall 
determine  to  have  been  applicable  to  the  case. 

Then  follow  the  three  rules  as  to  duties  of  neu- 
trals in  time  of  war;  au<l  the  article  ck>8es  with  this 
provision: 

And  the  high  contracting  parties  agree  to  observe  these 
rules  as  between  themselves  in  future,  and  to  bring  them  to 
the  knowledge  of  other  maritime  powers  and  to  invite  them 
to  accede  to  them. 

It  is  aj)})arent  that,  as  to  the  rule  of  damages,  tlie 
arbitrators  were  bound  by  the  })rinci})les  of  inter- 
national law,  and  that  their  decision  upon  that  ques- 
tion must  be  held  to  be  the  international  law  as 
between  these  nations,  according  to  the  authorities 
cited  in  this  argument  at  page  20,  .sujira  et  seq. 

That  rule  is  bindinK-  under  this  Convention  un- 
less — ((()  the  position  taken  in  the  British  argument 
(p.  25,  fol.  20)  be  correct,  that  the  Tribunal  did  not 
reall}'  decide  against  the  princiide  of  ])rospective 
profits;  or  (//)  there  is  something  in  the  facts  here 
that  distinguishes  the  principle  to  be  applied;  or  (c) 
a  distinction  is  to  be  made,  as  claimed  in  the  British 
argument,  on  the  ground  that  the  torts  in  that  case 
were  not  directly  connnitted  l)y  Great  Britain  with  her 
own  cruisers. 

(a) 

A  somewhat  remarkable  statement  is  found  in  tiie 
British  argument  ([).  25,  fol.  20),  as  follows: 

A  reference  to  the  i)roceeding8  before  the  Geneva  Arbitra- 
tion will  show  tliat  as  a  matter  of  fact,  although  this  general 


DAMAGES PKOSPECTIVE    CATCH. 


95 


proposition  was  laid  down  in  the  award,  /(  unn  in  lieu  of 
lifitspictire  proJiU  ir<in  alloiced  to  the  dovernmen,. 

jly  rt'foience  to  protocol  No.  21)  it  will  appear  that  the 
:i\v;ii'(1  was  finally  made  upon  the  basis  of  allowing  a  sum 
ei|iiiil  to  -*;>  per  cent  of  the  value  of  the  vessel  and  outfit  in 
lit'ii  of  i)rospective  cateh,  this  sum  amounting?  in  that  case  to 
s!l,SS,000. 

This  is  i\  strikint;  error. 

.Vttcr  a  vory  iull  inul  most  exhaustive  <liH('iissioii  of 
the  (|Uestioii  ot"  prospective  catch,  and  alter  botli  sides 
li.id  rested  the  entire  aro^uinent,  on  Aug-ust  li>,  li-1'2 — 
hut  ten  (hiys  before  the  first  formal  ruling-  ag-ainst 
pnispective  ])rolits — tlie  arl)itrators  re(piested  the 
coiiiisi'l  for  the  United  States  to  present  tables  of  the 
rhiinis  of  the  United  States,  and  then  hi  those  tables, 
MS  stated,  "In  acconlance  with  the  suggestions  of  some 
lit'  the  arbitrators  (the  counsel  say),  we  have  elimi- 
iiiitcd  from  the  tables  the  claims  submitted  in  favor  of 
whaling'  vessels  for  the  prospective  catch,  the  amount 
of  wliich  would  be  84^01  )n,3()2.;")0;"  and  it  apjjears 
that  those  claims  were  so  eliminated  for  the  purposes 
of  the  tables  for  the  use  of  the  arbitrators,  althoug-h 
not  wholly  withdrawn. 

(Si'c  Papers,  Treaty  of  Washington,  Vol.  Ill,  pp. 
579-580,  and  attached  tables  under  head  Shenandoah, 
[I]).  (i(»-_M)09.) 

In  Protocol  XXVII  (Id., Vol.  IV,  p.  43)  the  arbitra- 
tors made  their  lirst  ruling  ag-ainst  [)rospective  profits 
Auiiiist  21),  1872. 

Now,  in  Protocol  XXIX,  by  which  the  British  argu- 
iiiciit,  liere,  states,  as  al)ove  (pioted,  "it  will  ajjpear  that 
the  award  was  finally  made  uj)  on  the  basis  of  allowing 
:i  Slim  e(pial  to  25  ])er  cent,  etc.,  in  lieu  of  prosjiective 
tiitch,"  it  a])pears  as  a  matter  of  fact,  and  as  stated  in 
the  protocol  itself,  that  the  only  figures  ])resent(Ml  was 
Hot  an  award  or  a  finding  at  all,  "but  that  ^l.  Staempfli, 
:is  uiu'  of  the  arl)itrators,  presented  to  the  Tribunal 
,.o|)i('s  of  the  syn<>ptical  table  which  he  had  i)re})ared  as 
,i  jiioposition  for  the  determination  of  a  sum  in  gross." 


96 


DAMAGES PKOSI'ECTIVE    CATCH. 

We  will  Mt'o  directly  how  tlint  arhitnitor  canu'  tn 
|nit  in  the  item  "  pj'ospective  profits  aiid  interruptidii 
ot"  voysi^e"  ill  this  his  own  mere  perstnal  siio'^^rfstion 
to  the  'iiMlmnal. 

lint  its  iippi'ars  l)y  the  same  protocol  (XXIX)  tlic 
arbitrator  for  (Jreat  iiritain,  Sir  Alexander  Cockhuni. 
promptly  attacked  the  item  in  (piestitui,  sayinji': 

M.  Htaeinpiii  has  nlso  added,  for  some  unknown  reason, 
26  JUT  cent  on  the  values  of  tlie  whalers,  an  addition  wliidi 
can  be  easily  shown  to  be  equivalent  to  altogether  allowiiij;, 
over  and  above  the  original  value  of  the  whalers  and  tlii-ii 
outfits,  a  perceiita^'e  exeteding  W  per  cent,  and  this  although 
the  ijuestion  of  interest  is  left  oi>en  to  the  decision  of  tbi- 
Tribunal. 

Tiiis  all  occm-red  on  Sr/jtriiihcr  :^,  1S7:^ — seven  days 
before  the  award  of  the  arbitrators.  (Vol.  IV,  id, 
pp.  44  to  47.) 

The  award  was  finally  agreed  to  and  adopted,  as 
a})pears  by  Protocol  XXXI,  on  Sepfvttihcr  ff,  1<S7':J,'A\v\ 
in  it  is  the. //»<</  decision  on  the  (piestion  of  ])rospectivc 
profits  in  these  words  (see  id.,  p.  53): 

And  whereas  prospective  earnings  can  not  properly  be 
made  the  subject  of  compenssition,  inasmuch  as  they  depend 
in  their  nature  upon  future  and  uncertain  contingencies,  the 
tribunal  is  unanimously  of  opinion  that  there  is  no  grouml 
for  awarding  to  the  United  States  any  xum  by  way  of  indem- 
nity under  this  head. 

That  is  the  final  judf^ment,  adopted  srren  days  iifler 
jn'otocol  21)  (referred  to  in  the  opposinf»"  argument  as 
above  quote(i)  was  made  and  sijiiied  l)y  the  arbitra- 
tors on  Se[)tember  2,  1872,  and  after  M.  Htaempfli  had 
then  made  the  snjifjj^estion  (called  the  award  by  the 
opposin«>-  ar^nment)  so  vig'oronsly  and  successfully 
contested  by  the  arbitrator  for  Great  Britain. 

The  error  of  M.  StaeTn^jfli  in  protocol  29,  is  thus 
shown  to  have  been  fully  discussed  and  ruled  to  be 
an  error,  and  expressly  ruled  as  not  having  the  ap- 
proval of  the  Tribunal. 


DAMA0K8 FUOSPECTIVK    CATCH. 


97 


It  i-i  a  inatttT  «>t"  no  importsincc  licrc,  1ml  it  is  ap- 
imrciit  that  in  inakinj^*  his  su<i«i('sti(>n  M.  Stacniptli 
WHS  iiiishMl  ill  assuniinj'"  tliat  (Jri'at  liiitain  Iwul  nia«lo 
;iii  mhnissioii  in  their  case  t<>  the  t'ttcct  set  out  in  liis 
iii(iiiitrjni(hnn  sn^i-jiestitMi.     'I'hns: 

At  pa^i'e  1()0!>  ot"  the  hritish  poiniter  case  an«l  e\i- 
(Iciicc,  fifth  jtarajirapli,  it  was  siioM.('ste(l  as  to  the 
irlidHiif/  rrsuc/s  (in  re^i'ard  to  which  on/_i/  any  '  ini  {'or 
|iros|M'ctive  '  atcli  was  made  l)y  tlie  I'nited  State-;) 
ilijit  iiiteivsi  at  tlie  rate  of  "  'J.j  p'-r  rrnf  pi  r  amnnn  oii 
til  jihie  of  each  sliij»  and  onttit,  and  in  addition  5 
(•cuts  per  ton  per  <hiy  to  meet  expenses  on  account  of 
(•\|i(iiditnres  and  other  dishnrscments.  hotli  amounts 
\n''\\v^  imduch'd  hrfurrH  the  (huf  of  Irarinff  port  ainl  the 
(liitr  of  ((ijttitrv,  wouhl  ])rovi(h*  for  tlie  loss  iictnally 
siistiiined  in  respect  of  the  forty-one  whah-rs." 

.M.  StaempHi  evidently  understiutd  from  this  admis- 
siuii  that  2')  per  cent  of  valKc  was  admitted  by  (Jreat 
Hritjiin  as  a  jiroper  measure  of  dama^i'es  in  the  case 
lit' the  whalers,  when  the  fact  was,  as  above  (pioted,  it 
WHS  •/>  prr  (('lit  jicr  (iHituui  hiictcsi  for  the  limited  time, 
wliicli  had  been  su<i';^ested  in  behalf  of  (Jreat  Hi-itain. 

it  is  iippjn'i.*nt  that  the  arl)itrators  allowed  no  interest 
ill  their  award  except  on  account  of  the  whalers,  and 
the  limited  ])eriod  sii<^<«ested  in  the  British  ar<>ii- 


tiii 


incut  as  above 

it  is  submitted  that  it  has  been  demonstrated  that 
the  IJeneva  Arbitration  did  decide  that  ])rospective 

tits  should  not  be  allowed.     Indeed,  it  is  ai)i)arent 


jiru 


tliat,  after  u  very  exhaustive  examination  of  the 
'itM'isicMis,  made  by  both  sides  in  tu.^  argument,  the 
L'liitcd  States  substantially  abandoned  the  claim. 

ri;iim  for  ])rospective  catch  or  jn'ospective  profits 
was  made  only  for  the  forty-one  whalers  destroyed 
"i"  ciiptured,  for  the  most  part,  by  the  Shenandoah. 
B  s 7 


98 


DAMAGES — PROSPECTIVE   CATCH. 

It  appeared  tluit  these  vessels  were  taken  on  tlie 
wliaUno-  oroiuids,  many  ot"  them  with  captured  wliales 
actuallv  aloimside;  all  of  them  suecesstullv  eno'ayed, 
and  all  with  more  or  less  bone  and  oil  on  board,  with 
every  ho[)e  of  a  large  catch. 

It  api)eared,  too,  that  substantially  the  same  evi- 
dence as  to  the  fishin<^'  <>Toun(ls  was  presented  under 
the  claim  for  pi-ospective  <'}itch  as  presented  hero, 
includinj^-  the  evidence  that  masters  and  crews  lind 
their  "lavs"  or  shares  in  the  vova<>'es. 

Vol.  Ill,  Papers,  Treat}^  of  Washington,  pp.  253- 
254;  2  Id.,  3.S4,  and  specific  evidence  of  ])rol)able 
catch  and  estimates.     "Am.  (^laims." 

l*araj)hrasin<>"  the  British  ar<>'ument  at  pajj-e  2'),  fol, 
40,  as  to  seals:  The  rcsscfs  frnr  found  oh  flic  whalhiii 
(jroiDxls,  iv'ifh  ciwri/  appJiaiive  for  caichin;)  irhales ;  tin' 
irludfs  were  there  to  he  <:(iii(jhf. 

(r) 

It  is  not  apparent  from  the  learnin**-  on  the  subject, 
heretofore  recorded,  that  there  is  any  difference  in  the 
rule  of  damages  for  marine  tort,  whether  that  tort  be 
the  result  of  neglig'ence  or  of  direct  action.  For  the 
most  part,  sudi  torts  are  those  of  negligence;  and 
if  Great  Britain  was  liable  at  all  for  the  depredations 
of  the  Alabama  cruisers,  she  was  liable  for  a  wrong, 
and  liable  for  the  usual  measure  of  damages  as  for  a 
wrong. 

The  case  of  The  Amiable  Nam>/  (3  Wheaton,  p.  5 16) 
was  a  case  of  capture,  of  which  Mr.  Justice  Storj', 
in  delivering  the  opinion  of  the  court,  said: 

"Upon  these  facts  disclosed,  this  must  be  pro- 
nounced a  case  of  gross  and  wanton  outrage,  witliont 
any  just  provocation  or  excuse."  But  the  court  held 
that  "the  probable  or  possible  benefits  of  "  voyage 
can  never  offer  a  safe  rule  by  which  to  estimate  uam- 
ages  in  cases  of  a  marine  trespass." 


his  IS  ai 


DAMAGES — PKOSPECTIVE    CATCH. 


99 


But  it  is  stated  in  tlie  ()])p()8iiig  arg-uineiit  (p.  25, 
tol.  30): 

A  radical  distinction  exists  between  the  Alabama  case 
and  tiie  present.  In  the  case  of  the  Alabama  it  was  not 
anilended  tliat  it  was  the  design  of  the  British  Government 
to  ciiuse  the  loss  which  ensned,  nor  was  snch  loss  the  direct 
result  of  the  negligence  with  wJiich  they  were  charged. 

riiis  is  answered  tioni  the  Hritish  argument  here, 
itself  (piotinjy-  the  positions  of  tlie  United  States 
aiiJiiust  (Ireat  Ih'itain  (p.  21,  fol.  10  ct  scf/.'). 

'Vhv  charj^'e  of  the  United  States  before  tlie  Geneva 
Tribunal  was  considered  by  Her  Majesty's  Govern- 
iiiciit  as  "a  «'haro"e  of  injurions  neg'li<>'ence."  (Brit. 
('use,  Vol.  1,  l*apers,  Treaty  of  Washington,  ]>.  412.) 

it  was  contended  on  the  part  <»f  the  United  Slates 
that  the  acts  of  Great  liritain  were  of  a  character  by 
•'actual  or  constructive  complicity  with  the  Confed- 
erates winch  gave  the  same  rights  against  her  as 
(beat  Britain  asserted  bv  war  against  the  Nether- 
lauds."  (T,!.,  Vol.  Ill,  p.' 218,  and  see  id.,  pp.  21!)- 
L>-_'(  1-222-228.) 

The  whole  argument  of  the  United  States,  from 
beginning  to  the  end  of  the  Geneva  Tribunal,  was  to 
establish  these  proi)Ositions,  as  against  Great  Britain, 
by  the  acts  of  cruisers  for  which  damages  were 
awarded: 

The  default'5  charged,  and  as  we  think,  the  defaults  proved, 
are  grave,  serious,  capital.    *    *    « 

If  you  destroj'^  my  ship,  my  house,  or  my  horse,  bj'  culpa- 
ble eiirelessness,  it  is  no  answer  to  say  that  you  might  have 
been  more  careless,  nay,  that  you  might  have  acted  with 
del i berate  malice.  If  there  be  responsible  wrong,  whether 
it  l)e  the  greatest  possible  wrong  or  a  degree  less  than  the 
groiitest  possible,  still  the  indemnity  follows  as  a  legitimate 
and  just  consequence. 

^!:'ch,  indeed,  is  the  tenor  of  the  treaty,  which  attaches 
res])oii8ibility  to  mere  want  of  "  due  diligence,"  and  does  not 
reiiuire  that  Great  Britain  should  have  been  guilty  of  the 
utmost  conceivable  degree  of  willful  negligence  which  could 
by  jiossibility  be  committed  by  any  Government. 


I.I.,  p.  220. 


100 


DAMAGES — PROSPECTIVE    CATCH. 


Ao-rtin: 

Id.,  p.  223.  Sucli  is  tUe  relative  predicament  of  Great  Britain  and  the 
United  States.  We  have  been  injured  as  a  nation  by  acts 
of  a  maritime  war  happening,  as  the  counsel  think  they  have 
proved,  by  the  culpable  and  responsible  negligence  of  the 
British  Government.  The  wrong  is  direct  as  between  the 
two  nations. 


(ieneva  Tribunal 
tort  l)v  the 


found    Great 


following'  language  of 


Britain 
the 


And  the 
guilty  of  a 
award: 

And  whereas  the  circumstances  out  of  which  the  facts  con- 
stituting the  subject-matter  of  the  present  controversy  arose 
were  of  a  nature  to  call  for  the  exercise  on  the  part  of  Tier 
Britannic  Majesty's  Government  of  all  possible  solicitude  for 
the  observance  of  the  rights  and  duties  involved  in  the  proc- 
lamation of  neutrality  issued  by  Her  Majesty  on  the  13th 
day  of  May,  18<il. 


And  whereas  the  Government  of  Her  Britannic  Majesty 
can  not  justify  itself  for  a  failure  in  due  diligence  on  the 
plea  of  the  inetticiency  of  the  legal  means  of  action  which  it 
possessed ; 

Four  of  the  arbitrators,  for  the  reasons  above  assigned, 
and  the  lifth,  for  reasons  separately  assigned  by  him,  are  of 
opinion — 

Tliat  Great  Britain  has  in  this  case  failed,  by  omission,  to 
fulfill  the  duties  prescribed  in  the  first  and  the  third  of  the 
rules  established  by  the  VI  Article  of  the  Treaty  of  Wash- 
ington. 

And  see  the  vigorous  terms  "offender"  and  "negli- 
g-ence"  in  the  Award.  (Award,  Vol.  4,  I^apers  Relat- 
ing to  ^J^reaty  of  Washington,  jjp.  4J),  50,  51.) 

A  failure  of  due  diligence  is  one  of  the  standard  defi- 
nitions of  negligence  and  of  "culpable  negligence." 

Culpable  negligence  is  not  actionable  unless  it 
results  in  injury,  and  recovery  can  not  be  had  for 
it,  then,  unless  the  negligence  is  the  direct  or  proxi- 
mate cause  of  the  injury. 

So  that  the  Geneva  Tribunal  having  found  culj)a- 
ble  negligence  on  the  part  of  Great  Britain  and  an 


DAMAGES PROSPECTIVE   CATCH. 

iniiiiv,  the  measure  of  recovery  aj)i)lie(l  by  it  i«  tlie 
nicjisure  to  be  applied  in  all  cases  of  iiuirine  tort,  and 
ill  this  case. 

it  is  submitted  that  the  ruling-  of  the  (ileneva  Tri- 
))iin!d  on  prospective  catch  is  the  law — the  law  of 
this  case. 

(TWO.) 

There  is  no  authority  for  the  allowance  of  pro- 
sj)('(tive  catch  or  [)rospective  profits  in  international 
Inw,  or  in  the  judgments  of  the  courts  of  either 
nation. 

There  is  no  conflict  whatever  <m  the  subject,  and 
after  considering  the  English  and  American  judg- 
inciits  against  the  allowance  of  such  damages  it  is 
])i(»j)osed  to  analyze  the  citations  to  the  ccmtrary  in 
the  (>i)posing  argument. 

It  sluRdd  be  borne  in  mind  that  the  claims  of 
owners  which  are  now  being  discussed  are  claims  for 
total  loss  to  them,  and  not  cases  of  warning  or  deten- 
tion.    Cases  of  warning  will  be  treated  separately. 

The  leading  cases  are  cited  as  follows:  The  Eng- 
Hsh  case  of  the  Columbus  (2  W.  Robinson,  p.  158, 
iiifni);  the  American  case  of  the  Lively  (Gallison, 
}).  315,  infra).  In  the  case  of  The  Amiable  Xancy, 
3  Wlieaton,  p.  34(): 

The  probable  or  possible  benetits  of  a  voyage  as  yet  in 
fieri  can  never  aftbrd  a  safe  rule  by  which  to  estimate  dam- 
ages in  cases  of  a  marine  trespass.  There  is  so  mach  uncer- 
tainty in  the  rule  itself,  so  many  contingencies  which  may 
vary  or  extinguish  its  application,  and  so  many  difiQculties 
in  sustaining  its  legal  correctness,  that  the  court  can  not 
believe  it  proper  to  entertain  it. 

The  Amistad  de  Rues  (5  Wheaton,  p.  385) : 

III  cases  o(  marine  torts  this  court  has  deliberately  settled 
tliat  the  probable  profits  of  a  voyage  are  not  a  tit  mode  for 
the  ascertainment  of  damages.  It  is  considered  that  the 
rule  is  too  u»"  3rtain  in  its  own  nature  and  too  limited  in  its 
applicability    o  entitle  it  to  judicial  sanction. 


101 


102 


DAMAGES — PROSPECTIVE   CATCH. 


In  tlio  liritisli  (Nmiiter  f'ase,  Geneva  Arbitration 
(pp.  9110,  !)91),  we  find  this  statement  oftlie  law: 

When  oiK-e  the  liability  to  i'oiiii)ensation  for  a  given  loss 
is  established,  such  compensation  is  to  be  estimated  in 
ac('oidan(!('  witli  the  well  recognized  \*T\uci\)\c  o\' rcntitutio  in 
inti'dnoii,  subject,  however,  to  those  considerations  as  to  the 
damages  not  being  of  too  remote,  contingent,  or  speculative 
a  charactei',  which,  being  common  to  the  Jurisprudence  of  all 
civilized  nations,  are  adoi)ted  ])y  international  law,  and  seem 
to  us  therefore  properly  api)licable  to  the  present  question. 

It  is  on  this  i)riiu;iple,  limited  by  these  considerations,  that 
the  courts  of  common  law  and  of  admiralty,  as  well  as  the 
prize  com  s,  both  in  I'^ngland  and  America,  have  awardeJl 
damages  (.7  cuscs  of  rolUfiion,  capture,  and  others  of  a  like 
naiure. 

Tiius,  in  the  case  of  the  Amntia  (.j  New  Reports,  104),  Dr. 
Lushingtctn,  the  late  very  eminent  Judge  of  the  high  court  of 
admiralty  of  England,  said : 

"Where  a  collision  has  taken  place  and  one  of  the  parties 
to  the  collision  has  been  placed  in  tlie  situation  of  the  wrong- 
doer, according  to  all  ordinary  princii>les  of  justice  the  party 
injured  ought  to  receive  full  aiul  entire  indemnity  for  bis  loss. 
This  is  a  principle  of  common  Justice.  It  is  undoubtedly  the 
rule  origiinilly  prevailing  in  all  these  cases,  and  is  techni(!ally 
styled  rentitutio  i)i  integrum.  It  is  not  only  the  doctrine 
of  the  court  of  admiralty,  but  the  doctrine  of  the  courts  of 
common  law." 

Again,  in  the  case  of  Clijde  (Swabey  K.,  23),  the  same 
learned  Judge  said : 

"  As  to  the  principle  upon  which  the  court  proceeds  in  these 
cases  there  is,  I  apprehend,  no  doubt  whatever.  That  has 
been  laid  down  in  the  (iazelle,  namely,  that  whenever  damage 
is  done  by  one  vessel  to  another  the  parties  are  to  be  restored 
to  the  same  state  as  they  were  in  before  the  accident — that 
is  to  say,  they  are  to  have  the  full  value  of  the  property  lost; 
restitutio  in  integrum  is  the  leading  maxim." 

So,  in  the  American  case  of  Williamson  v.  Barrett  (13 
Howard,  101),  it  is  said:  "The  general  rule  in  regulating 
damages  in  cases  of  collision  is  to  allow  the  injured  party  an 
indemnity  to  the  extent  of  the  loss  sustained."* 


*Tlu8  watt  a  case  of  dotentioii,  not  total  loss;  see  opinions  of  three 
justices,  incliuling  Taney,  C.  .1..  laying  down  the  rule  of  the  text  and 
disseuting  because  not  applied  to  a  case  of  detention  preciselj'  as  to  a 
total  loss. 


!'•       I 


DAMAGES — PROSPECTIVE   CATCH, 


103 


Dr. 


(-*» 


On  the  other  hand  that  general  rule  is  limited  by  the  coii- 
sidcijitions  above  referred  to.  Thus,  in  the  Colitmhus  (2  W. 
llobiiisou,  1.58),  Dr.  Lushingtou  said: 

"It  has  been  argued  that  the  i>rinciple  upon  which  this 
iMiiut  i>rot'eods  in  all  matters  of  this  kind  is  restitutio  in  iiitc- 
finiiii :  in  other  words,  the  principle  of  replacing  the  party 
who  lias  received  the  damage  in  the  same  position  in  which 
lie  would  have  been  provided  the  collision  had  not  occurred. 
As  a  .general  proposition,  undoubtedly  the  j)riuciple  in  ques- 
tion is  correctly  stated,  and  not  oidy  in  this  court  but  in  all 
ntlicr  courts  1  ai)prehend  the  general  rule  of  Ijiw  is  that 
wlicic  an  injury  is  committed  by  one  individual  to  another, 
cither  by  himself  or  his  servant,  for  whose  acts  the  law 
iiialu's  him  responsible,  the  party  receiving  the  injury  is 
ciitillcd  to  an  indemnity  for  the  same.  IJut  although  this  is 
till'  general  ])rinciple  of  law  all  courts  have  found  it  neces- 
siuy  to  adoi)t  certain  rules  for  the  apidication  of  it,  and  it 
is  utterly  impossible  in  all  the  various  cases  that  may  arise 
tliat  the  remedy  which  the  law  may  give  should  always  be 
to  the  precise  amount  of  the  loss  or  injury  sustained. 


*  *  *  ''Let  us  for  a  moment  consider  what  would  be  the 
efl'eet  in  uU  cases  of  this  kind  of  giving  anything  beyond 
tlie  full  value  of  the  vessel  destroyed.  Supposing,  for  in- 
stance, that  this  vessel  had  been  an  East  ludiaman  bound 
on  lier  outward  voyage  to  the  East  Indies  with  a  valuable 
cai}j;o  on  board,  for  the  transjwrtation  of  which  not  only  would 
the  owners  be  entitled  to  a  large  amount  of  freight,  but  the 
nil'  ^  •  must  be  entitled  to  considerable  contingent  profits 
Iroin  allowances  made  to  him  upon  such  a  voyage.  Could 
this  court  take  upon  itself  to  decide  upon  the  aujount  of 
these  contiiigencies,  and  to  decree  the  payment  of  the  same 
ill  addition  to  the  payment  of  the  full  value  of  the  shii)?  I 
am  clearly  of  the  opinion  that  it  could  not. 

'  The  true  rule  of  law  in  such  a  case  would,  I  conceive,  be 
this,  viz,  to  calculate  the  value  of  the  property  destroyed  at 
the  time  of  the  loss,  and  to  pay  it  to  the  owners  as  a  full 
indeninity  to  them  for  all  that  may  ave  happened,  without 
entering  for  a  moment  into  any  other  cofisideration.  If  the 
ininciple  to  the  contrary  contended  for  by  the  owners  of  the 
smack  in  this  case  were  once  admitted,  I  see  no  limit  in  this 
aitplication  to  the  difficulties  which  would  be  imposed  upon 
the  court.  It  would  extend  to  almost  endless  ramiticatious, 
aud  in  every  case  I  might  be  called  upon  to  determine  not 
only  tlie  value  of  the  ship  but  the  x)roflt8  to  be  derived  on 


n'    t  li; 


;     i 


104 


DAMAGES PROSPECTIVE    CATCH. 


tbe  voyage  in  which  she  might  be  engaged ;  and,  indeed,  even 
to  those  of  the  return  voyage,  wiiich  might  be  said  to  have 
been  defeated  by  the  collision.  Upon  this  consideration 
alone  I  should  not,  I  conceive,  be  Justified  in  admitting  this 
claim." 

The  same  qualification  of  the  broad  i)rincii)le  of  reHtitutk 
in  itttrgriim  is  laid  down  by  Mr.  Justice  Story  in  several 
reported  cases,  as,  for  insta"ce,  in  the  case  of  the  Lively  (I 
Gallison,.'Jir)),  where  that  most  eminent  American  Judge  said, 
in  reference  to  damages  for  loss  of  cargo: 

"  Tpon  the  whole  I  am  satisfied  that  the  profits,  upon  the 
supposition  of  a  prosperous  termination  of  the  voyage,  ought 
not  in  any  case  to  constitute  an  item  of  damage.  *  *  ♦  j 
am  satisfied  upon  principle  that  an  .allowance  of  damages 
ui)on  the  basis  of  a  calculation  of  profits  is  inadmissible.  The 
rule  wouldbe  in  the  highestdegree  unfavorable  to  theinterests 
of  the  community;  the  subject  would  be  involved  in. utter 
uncertainty. 

"The  calculation  would  proceed  upon  contingencies,  ami 
would  require  a  knowledge  of  foreign  markets  to  an  exact- 
ness in  point  of  time  and  value  which  would  sometimes  pre 
sent  embarrassing  obstacles.  Much  would  depend  upon  the 
length  of  the  voyage  and  the  season  of  arrival,  much  upon 
the  vigilance  and  activity  of  the  master,  and  much  upon  the 
momentary  demand.  After  all,  it  would  be  a  calculation 
upon  conjecture  and  not  upon  fac^s.  Such  a  rule,  therefore, 
has  been  rejected  by  courts  of  law  in  ordinary  cases,  and 
instead  of  deciding  upon  the  gains  or  losses  of  parties  in 
particular  instances,  a  uniform  interest  has  been  applied  as 
the  measure  of  damages  for  the  detention  of  property." 

See  also  Parsons  on  Sln})})ing',  Vol.  I,  p.  538,  and 
Sedgwick  on  Damages,  ]>.  70. 

The  reason  ot"  the  rule  against  allowing  prospec- 
tive catch  t)r  ])robal)le  profits  is  well  stated  in  the 
English  case  of  the  Columbus  (2  W.  Robinson,  p.  158), 
a  fishing-  vessel : 

In  them  (the  claims)  exist  all  tliose  elements  of  uncertainty, 
remotei.v-ss,  and  difticulty  which  would  undoubtedly  lead  the 
courts,  both  in  America  and  in  England,  to  reject  the  claims 
altogether.* 


'  See  subsequent  head  ou  Contingencies  of  sealing,  p.  177,  this  argument, 


m^^mm 


DAMAGES — PROSPECTIVE    CATCH. 

DecisioHS  of  ntlter  interfudioiial  tribunals. 

Ill  tlio  year  1867  an  especially  hard  case  occuiTed. 
It  Wiis  called  in  the  diplomatic  correspondeiu'e  "an 
(intrii<ic  comniitted  on  the  hijili  seas  near  the  Brazilian 
(oiist  ii])on  a  whaleship  called  the  Canada,  sailing- 
under  the  Hag-  and  belonging  to  citizens  of  the  United 

StiltCS."* 

The  act  was  (;oinniitted  by  the  niilitarv  anthorities 
of  l)iazil,  tor  which,  of  course,  the  Brazilian  Govern- 
uiciit  was  responsible.  It  consisted  of  the  capture  of 
the  vessel,  resulting  in  her  loss  to  the  owners. 

Xot  only  was  the  act  an  affront  to  the  flag  and  the 
cliyiiitv  of  the  United  States  and  a  disastrous  wrong 
to  citizens  of  the  United  States,  but  the  circurn- 
stiiiices  were  particularly  atrocious,  in  that  the  whaler 
at  the  time  was  in  distress,  having  run  on  the  rocks, 
and  was  in  imminent  danger  of  sln})wreck. 

The  unquestioned  princi})le  of  international  law 
need  not  be  here  referred  to,  that  hi  such  circum- 
stances a  vessel  is  held  to  be  under  the  protection  of 
all  nations,  and  free  from  the  ordinary  rules  as  to 
liahility  to  the  laws  of  port  of  any  nation  except  its 
own. 

On  March  14,  1870,  a  convention  was  concluded 
Itetween  lirazil  and  the  United  States  by  which  the 
question  of  liability  and  compensation  was  referred 
to  tlie  arbitration  of  Sir  Edward  Thornton,  then,  and 
for  a  long  time  thereafter,  Her  Britannic  Majesty's 
minister  at  Washington. 

>>ir  Edward  made  his  award  on  July  11,  1870,  by 
wliich  he  found  the  following  facts: 

The  Canada  grounded  on  a  reef  of  rocks  within 
l^iazilian  jurisdiction.  The  proper  means  w^ere  used 
b}'  her  captain  and  crew  with  every  prospect  of  suc- 


105 


"  Dispatch  of  Secretary  Fish  to  Mr.  Blow  communicated  to  the  min- 
ister for  foreign  affairs,  December  28,  1869. 


106 


DAMAGES — PROSPECTIVE   CATCH. 


cess  to  j>et  her  oft",  and  on  December  1  a  Brazil! 


an 


An 


That  slie  wonhl  iii  tact  have  been  sa\('(l  l)iit  tor 
tliis  improper  iutertereuce,  and  tliat  she  was  lost 
thronji'li  the  intert'ei'ence. 

lOvidence  was  introdnced  as  to  the  possible  iuid 
prospective  catch  it'  she  had  ])een  j)ermitted  to  jn-oceod  Hlmiud 


on  1 


ler  voyaw 


The  amonnt  ot"  the  prospective  catch  was  den 


1011- 


strated  bN'   her  own 


)revion 


s   catches   and    by  tli 


The  result   V 
otlicer  with  14  armed  men  boarded  lier,  superseded  ||/inl  I'.iilield  o 

lie  tollowin 
the  further  prosecution  of  their  efl'orts  to  save  the  HuhI  I'or.  State 

Asicsimls  the 

if  shijis  over  aii< 

1111(1  i>f  the  mast 

Kiiinl  .ire  advise 

The  claims  pre 

allies  of  the  vi 

iii;inl,  or  were  a 

he  owners  ibr  h 

Uty.  1111(1  compe 

llos's  of  their  emii 

A  t'luther  ques 

[owners  iire  entitl 

vessel  and  carg( 

Itliiit  if  they  hai 

|iiii,<;lit  have  cout: 

[a  prosperous  tra 

jOiie  gentleman  i 

pated  profits  of 

iliiim  it  indirect 

Ihave  estimated 

whether  in  the 

(luite  inadmissil 

Tiie  principle 

very  clearly  laici 

X'ohiiiiliiiN,  repor 

[ease  of  a   fishit 

utterly  lost,  and 

the  smack  havii 

£8!)  for  wages  i 

nwatir  projit  w 

emplojiment  of  1 

ilaiiu,  saying, 

total  loss  you  c 

at  the  time  of  t 

iiulemnity  to  hi 

und  yoH  never  V' 

vliat  might  havi 

Indrentitre  of  th 

*  Sec  aiialysia  ti 
1 1  utch  litit'ore  the  c 


catches  of  other  whalers  for  the  same  season. 

'^riie  distin<4'uished  arbitrator  of  course  held  Brazil 
liable  for  the  full  value  of  the  loss  so  intlicted  on  the 
citizens  of  the  United  States,  and  that  a  full  com- 
pensation and  indemnity  became  actually  due  fr 
the  moment  of  the  loss;  bait  on  the  question  of  pr 
pective  catcli,  the  arbitrator,  in  ruling  against  it,  uses 


'0111 

•os- 


this  1 


fniofuaoe 


I  can  not  admit  in  any  case  the  right  to  probable  profits, 
because  the  ship  might  have  been  lost  at  the  beginning  of 
her  voyage,  or  the  expedition  might  have  been  altogether  a 
failure  and  profitless.  (Vol.  00,  Brit,  and  For.  State  Papers, 
1874-5,  pp.  204-209.) 

Great  Britain  made  a  claim  against  Germany  for 
the  destruction  of  certain  British  vessels  in  the  beine 
by  the  forces  of  German}'  in  1871,  in  behalf  of  her 
subjects,  the  owners.  The  (daims  were  first  audited 
and  examined  (as  these  should  have  been)  authori- 
tatively by  the  British  Government,  and  for  this  pur- 
pose were  referred  to  the  lords  of  the  privy  council 
for  trade.  There  was  also  a  reference  to  and  a  report 
from  the  learned  registrar  of  the  court  of  Admiralty, 
Mr.  Rother3^ 


DAMAGES — PROSPECTIVE   CATCH. 


107 


Lilian  ■  Tlic  result   was  roportotl  by  Sir  Louis   Mallet  to 
•wled  ll.uid  KiilieM  ou  A])ril  If),  1.S71. 
'iited  I  Tlie  fnlloNviuo-  is  au  extract  from  that  report  (Brit. 
''  till'  |„„|  For.  State'J'apers,  1S70-1,  Vol.  61,  j))).  r)!»l-6()7): 

^  As  icgiuds  the  claims  of  the  owners  for  h)ss  of  emi)loyinent 
It  for  H,!  slii]is  over  and  above  the  claims  for  valne  of  the  sliips, 
Idst  Biiitl  I't  the  masters  and  crews  for  loss  of  employment,  the 
i);ii(l  lire  advised  that  tliey  mnst  be  rejected  as  nntenable. 
The  claims  preferred  may  be  said  generally  to  include  the 
lines  of  the  vessels,  and  of  the  cargoes  which  were  on 
iiciid,  or  were  about  to  bo  put  ou  board,  com|)ensation  to 
he  Dwiiers  for  having  been  forcibly  deprived  of  their  i)rop- 
[t'lty.  and  compensation  to  the  master  and  seamen  for  the 
loss  of  tlieii'  employments  (p.  GOO). 

\  fiirtlier  question  seems  to  have  been  raised  whether  the 
(nvnt'is  are  entitled  to  anything  beyond  the  full  value  of  the 
vessel  and  cargo,  the  restitutio  in  iiitejjrum,  on  the  ground 
that  if  tliey  had  not  been  deprived  of  their  vessels  they 
iiii,L;lit  have  continued  for  some  months  or  years  to  carry  on 
II  prosperous  trade  and  have  realized  large  profits  therefrom. 
One  gentleman  claims  specifically  on  this  grouud  the  antici- 
pated  i)rortts  of  several  subsequent  voyages,  and  all  of  them 
tliiiiii  it  indirectly  in  the  extravagant  amounts  at  which  they 
have  estimated  the  vjilues  of  their  vessels;  but  the  claim, 
wlietlior  in  the  one  shape  or  the  other,  seems  to  me  to  be 
(liiite  inadmissible. 

The  principle  which  governs  cases  of  this  description  was 
very  clearly  laid  down  by  Dr.  Lushington  in  the  case  of  the 
CdliiiithiiN,  reported  in  6  Notes  of  Oases  (p.  071).  It  was  the 
ease  of  n  lishimj  vessel,*  which  had  been  run  down  and 
utterly  lost,  and  the  owner,  who  was  also  the  master,  claimed, 
the  smack  having  been  his  sole  means  of  suiqjort,  a  sum  of 
t8!»  for  wages  and  victualing,  and  £75  for  twelve  months' 
uremijv  profit  which  icoiild  have  accrued  to  him  from  the  usual 
emplojiment  of  his  smack.  But  Dr.  Lushington  rejected  the 
elaim,  saying,  "I  take  the  rule  to  be  this:  In  the  case  of  a 
total  loss  you  calculate  the  value  of  the  property  destroyed 
at  tlie  time  of  the  loss  and  pay  it  to  the  individual  as  a  full 
iiuleinuity  to  him  for  all  that  may  have  happened  to  him, 
(ind  ijon  never  can,  by  possibility,  enter  into  an  examination  of 
ii^lKit  might  have  been  gained,  or,  on  the  other  hand,  lost  by  an 
(I'lreutit're  of  this  A;t»ei." 

'  i^ou  analysis  this  case  infra,  shonring  evidence  of  average  profits  of 
I  'Htclt  before  the  court  on  this  question. 


\.\ 


I     ! 

■  '  ■  ! 


108  DAMAGES — PROSPECTIVE    CATCH. 

And  the  reason  is  obvious,  for  no  one  can  say  with  cer- 
tainty whether  in  any  future  adventure,  for  which  there  in  m 
cxpreHN  contract,  the  shipowner  will  make  a  profit,  nor  what  I 
that  profit  will  be.  //'  there  is  an  erpresH  contract  for  the  ]m\ 
of  the  ship,  you  can  no  donbt  eHtimateaiq)ro.rimatehi  thc]iroj\h\ 
of  the  voyage,  Imt  if  there  is  no  nuch  contract  you  can  notdoHoA 
and  the  adventure,  instead  of  {living  a  profit,  may  result  in  a| 
heavy  loss. 

Iv  tlie  case  of  the  JliaiidflKi  botore  tlie  liritish  and 
AnuM-icMU  Mixed  Conunission  of"  May,  1H71  (p.  91, 
lirit.  Aji'ent's  Keporr),  tlie  same  priiu'ii)le  was  affirmed 
ill  tlie  case  oi'  elaiiiis  for  losses  of  profits  and  the  fail- 
ure to  realize  coinniissioiis  on  sales  dej)eiidiiij»"  updiii 
the  safe  arrival  of  the  ship. 

■^riie  case  of  the  Washinf/tou  before  the  Mixed  Com- 
iiiissiou  of  18r)3  was  in  every  respect  analogous  to  I 
the  present  case. 

Great  liritain  claimed  iurisdiction  over  the  liayotl 
Fnndy  as  territorial  waters.  The  Washington  was 
seized  10  miles  from  shore.  It  was  held  that  the 
waters  were  not  territorial,  and  that  the  seizure  of  the 
WashiH()ton  was  made  on  the  hijjli  seas.  The  ship 
was  owned  by  American  citizens,  and"  was  under  the 
American  flag. 

It  was  therefore  a  case  of  seizure  in  principle  pre- 
cisely like  the  case  here.  She  had  been  condemned  I 
by  a  British  court,  and  with  her  equipment  and  stores 
sold  under  the  order  of  the  court  At  the  time  of  the 
seizure  she  was  engaged  in  fishing,  and  she  made 
claim  for  all  damages,  including,  it  is  assumed,  her 
probable  catch  and  interest  As  finally  decided  by 
the  umpire,  the  claim  was  abated  from  $4,121  as 
excessive,  and  the  sum  of  S3, 000  was  allowed. 

While  the  ruling  is  not  expressly  made  against 
prospective  catch,*  it  is  clear  that  that  item  was  not 
allowed. 


DAMAGES — PROSPECTIVE   CATCH. 

Of  her  aitthoritir.s  from  the  courts. 

In  tlu'  Apollon  (1>  Wheaton,  362),  Mr.  Justice 
M(ii\,  delivering  the  opinion  of  tlie  court,  said  (p. 

nil): 

This  court  on  various  occnsious  has  expressed  its  decided 
jDpiiiion  that  the  probable  jjrofits  of  a  voya{>:e,  either  upon 
khip  or  (;argo,  can  not  furnish  any  just  basis  for  the  coui])uta- 
[ioii  of  (lainajjes  in  cases  of  ni.arine  tort.    *    •     • 

Wben  the  vessel  and  cargo  are  lost  or  destroyed,  the  just 
[iieiisuro  lias  been  deemed  to  be  their  actual  value,  together 
vitli  interest  upon  the  amount  from  the  time  of  the  tres- 

|)ilSS.     *      *      * 

And  it  may  be  truly  said  that  if  these  rules  do  not  furnish 
complete  indemnification  in  all  cases  they  have  so  much 
bertaiiity  in  their  application    *    •    *    that  they  are  entitled 
([osoiiH!  conuiiendation  upon  principles  of  public  policy. 

Sccidso  Smith  v.  C(>n(h'ev,  1  IIow.,  2S ;  Vauglian 
[mil  'iVlefrrajdi,  14  Wall.,  258  ;   Del.  Co.  v.  Arnold, 

1  )iill..  a.'}3 ;  Tlic  A  mm  Maria,  2  Wheat.,  327.  Wood's 
Jliiyiic  on  Damages,  cited  in  the  British  arf>unient 
(1st  American  Ed.  from  3d  English  edition,  )).  5(5) 
f>;iys ; 

In  {•('iieral,  however,  injuries  to  property,  where  unaccom- 
Itiinied  by  malice,  and  especially  where  they  take  place  under 
vfawkd  r if/lit,  are  only  visited  with  damages  proportionate 
[0  tlie  actual  pecuniary  loss  sustained.  (Grand  Tower  Co.  v. 
f'hilliiis,  !>;{  Wall.,  471;  Owen  v.  Routh,  14  (J.  B.,  327.) 

And  in  I  Sutherland  on  Damages,  173: 

The  value  of  the  property  constitutes  the  measure  or  an 
^lenient  of  damages  in  a  great  variety  of  cases  both  of  tort 
[iiid  contract;  and  where  there  are  no  such  aggravations  as 
for  or  justify  exemplary  damages,  in  actions  in  which 
feuch  damages  are  recoverable,  the  value  is  ascertained  and 
fidoptcMl  as  the  measure  of  compensation  for  being  deprived 

1  the  property,  the  same  in  actions  of  tort  as  in  actions  upon 
Ntnut.  In  both  cases  the  value  is  the  legal  and  fixed  meas- 
ure of  damages,  and  not  discretionary  with  the  jury. 

Sw>  the  City  of  Pekin  (15  App.  Cas.  H.  L.,  438), 
Miich  was  a  case  of  partial  loss;  The  Falcon  (19 
fVall,  75);   The  Atlas  (93  U.  S.,  302). 


109 


110 


DAMAGES — PROSPECTIVE   CATCH. 


It  results  tlijit  tlie  decisions  of  intenuttional  coiiits 
and  of  courts  of  hotli  countries,  are,  witliout  oxc('|h 
tion,  in  direct  contiict  with  the  jxtsition  taken  in  flu 
o|»|)osinji'  argument,  in  every  case  where  the  sliii 
of  th(^  <-hiiniant  is  h>st  to  liim  hy  tort,  either  In 
(hvstrtiction,  capture,  or  the  ahan<h>niiient  by  tin 
owner  to  coufh-nniation  )»roceedin;>s,  or  to  the  cajitdr, 
or  in  any  otlier  case  of  actual  h»ss  of  the  proiM-r 
Cases  of  (h'tention,  and  possibly  >>\'  warnin<^s,  stiiml 
upon  a  diti'erent  footinji',  and  in  ich  cases,  both  nl 
(contract  and  tort,  daina<^es  in  the  n  rure  of  deiruirnifa'l 
are  always  allowed,  and  in  some  cases  where  a  loss  In 
the  detention  can  l)e  shown  (piond  (piantuni  witli  nr- 
tu'nitji,  soniethiny-  ni(>re  than  the  ordinary  deiuurniw 


d 


may  he  allowed;  ncNcr  even  n>  such  case  on  sjkm 


lati 
cl 


,'h 


tl 


ve    evidence   wiiere    there    are    contniiiencies 


lances. 


It  is  now  pro])osed  to  analyze  the  cases  cited  in  tk 
Biitlsli  ai()utuent from  paijes  .'Jl  to  ii4: 

(1)  -.• 

I Pcahe  (jt.  :J70):  The  action  was  like  ihat  of  con- 
spiracy to  injure  trade. 

It  was  a  willful  and  malicious  tort,  fi»r  which  a 
recovery  could  have  been  had,  as  in  the  case  of  any 
trespass.  As  for  instance,  a  conspiracy  with  overt  act 
or,  possibly  more  aptly,  a  malicious  libel  not  action- 
able/>e/- se  and  not  actionable  without  an  averment  of 
special  damages. 

The  case  is  not  in  point,  and  besides  its  citatiou 
here  is  distinctly  noti  sequitur,  as  the  amount  of  dam- 
ages, or  whether  profits  were  allowed,  does  not  appear, 
the  parties  having  agi'eed  to  refer  the  amount  to  arbi 
tration. 

*  See  page  116,  this  argument. 


Tlir  h'lsohif 

ill)  It  was 
Wiis  ;i  suit  foi 
iiijikin;''  repaii 

(l>)  The  sn 
ciiiiicrs,  iind  i 

{(■)  It  does 
lilt'  ciitch  was 
iv^iisti'iir  and 
IH'oots  ;i  i\  CO 
tiiill  ut  costs  ( 

{>!)  The  cji 
never  trcat(  d 
m  ill  jiny  Hri 
Wiis  icndered 
(h.  K.  Dig.  to 

{r)  Moreov 
10!!)— an  aj)) 
nf  The  Jliso/it 
licld  that  a  ^ 
the  owners  cl 
loss  of  marke 
1r'  coiisiderec 
-failles  HaniK 
1(15-118),  w 
consignee  co 
market,  as  tl 
ter  of  specul 
haiiil)  v.  Wal 
hum,  C.  J.,  di 
ho  recoverec 
huihliiig. 

The  last 
mlecl  on  this 


DAMAGES — PROSPECTIVE   CATCH. 


Ill 


(2) 


Tlir  llisohifo  (H  r.  ]).,  p.  110): 

('0  It  \V!is  not  SI  ('{180  of  loss  of  the  vessel,  ])iit 
u;is  ;i  suit  tor  (Innuijjfes  for  delay  or  detention  while 
iiiiikiii^i-  re|)airs  rendered  necessary  by  the  tort. 

(h)  I'lu;  snit  aj)[)ears  to  have  been  between  tor- 
(■i;;iiers,  and  n(iver  to  have  been  appealed. 

(r)  It  does  not  appear  that  the  point  as  to  proba- 
lilc  cjitch  was  made  in  the  case  when  r<'porte(l  l.y  the 
nji'istrar  and  merchants,  but  the  det'eiulants  went  to 
)iriM)t's  ji  ,d  contested,  the  point  <lecided  bein^-  a  (pies- 
tiuii  of  costs  only. 

('/)  The  case  occurred  in  ISSl;  the  decision  was 
ii('\('r  treated  as  an  authority  or  cited  or  referred 
fd  ill  any  Mritish  or  American  <'ase  from  the  time  it 
was  rendered  down  to  and  inchuhng  1895,  incluHive. 
(h.  i;.  Dio-.  to  1895.) 

(r)  Moreover,  in  the  case  of  The  Notfiufi-Ifill  (9  1 '.  1 )., 
1011) — an  ai)peal  case  decided  afterwards — the  case 
lit"  TIte  Jlisoluto  is  not  referred  tt),  and  it  was  there 
hold  that  a  ship  having-  been  damaged  by  collision, 
the  owners  claiming  among  other  things  damages  for 
loss  of  market,  the  consequence  of  delay,  it  could  not 
1)0  considered  as  on  element  of  damage,  affirming  Sir 
Jaiui's  Hamien  in  the  case  of  llie  Parana  (2  P.  D., 
1(15-118),  where  it  was  held  that  for  a  dehay  the 
consignee  could  not  recover  damages  for  loss  of 
iiiiuket,  as  that  element  of  damages  involved  a  mat- 
ter <»f  speculation  on  contingencies.  In  the  case  of 
Lamb  V.  Walker  (3  Q.  B.  D.,  389)  it  was  lield  (Cock- 
hum,  C.  J.,  dissenting)  that  prospective  damages  could 
bo  recovered  for  removing  the  lateral  support  of  a 
building. 

The  last  case  was  distinctly  and  expressly  over- 
ruled on  this  point  under  the  universal  ruling  against 


112 


DAMAGES PROSPECTIVE   CATCH. 

prospective  damages  in  Dailey  v.  Alitcliell  (14  Q.  K  D., 
11  Apj).,  127). 

(/)  This  is  not  an  antliority  as  a<»ainst  the  leadini; 
Fishing  case  involving  directly  the  })rinciple  of 
average  ])r<)fits  on  tiitnre  catch,  decided  by  Dr.  Liisli- 
ington  (JrUv  Colutuhm,  G  Notes  oi"  Cases,  supra). 

(3) 

The  Gleaner  (3  As}).  Mar.  Cas.  N.  S.,  582),  alsd 
reported  in  38  L.  T.  (N.  S.,  G50).  Tliis  was  an 
action  bronglit  against  a  trawl  fishing  smack,  Ik 
iiJeaver,  by  the  owners  of  tlie  drift-net  smack  Tk 
Maud  and  Florence,  for  collision.  The  claim  was  for 
the  valne  of  nets  and  gear  and  com})ensation  for  lo(«s 
in  iisliing.     '^Phe  ship  was  not  lost. 

Tlie  re})ort  <>f  the  registrar  allowed  €72  for  the 
earnings  of  the  smack  for  fonr  weeks — the  season's 
fishing.  The  claim  was  not  objected  to,  and  the  case 
was  not  in  conrt  on  the  })oint  of  allowance  of  pros- 
])ective  profits,  but  was  re])orted  to  the  c«un't  on  the 
(piestion  of  costs  only,     "^rhe  case  was  never  a])j)cale(l. 

(^) 

lite  Arf/enfi}(o  (14  A\)\).  Cas.,  ]).  olO):  This  was  nut 
a  case  of  total  loss.  The  Anfentino  was  ]»rocce(liiij;' 
on  a  vi.yage  to  Seva,sto[)ol,  an<l  she  had  a  contract  pro- 
viding that  as  soon  as  she  dischar<>'ed  her  caryo  at 
Sevastojjol  she  shonld  proceed  to  Antwerp,  and  load 
for  another  vova}>e.  \W  reasim  of  the  collision  she 
w^as  ])revented  from  fulfilling  the  contract  for  the 
second  voyage. 

Lord  Ilerschel  announced  to  the  lords  his  views,  as 
follows: 

It  does  not  appear  to  me  to  be  out  of  the  ordinary  course 
of  things  that  a  steamship  while  prosecuting  her  voyage 
should  have  secured  employment  for  another  adventure,  and 
if  at  the  time  of  collision  the  damaged  vessel  had  obtained 


DAMAGES — PROSPECTIVE    CATCH. 


lis 


such  an  engiigemeiit,  the  loss  of  the  earnings  on  such  an 
advtMiture  appears  to  me  to  be  the  direct  and  natural  con- 
seiiiieucc  of  such  a  collision. 


Wliere  no  claim  is  made  in  respect  of  loss  arising  from 
the  owner  having  been  deprived  of  the  earnings  on  the 
voyiijjc  which  was  in  contemplation,  an  engagement  for  which 
had  licen  secured,  it  would  he  right,  and  is  no  doubt  the 
usual  course,  to  award  damages  under  the  vxme  of  demur- 
rage, etc.  (See  this  very  exception  to  tl;c  goni'val  rule,  i.  e., 
a  case  of  "Express  contract  for  the  hire  of  the  ship,"  noted 
by  i)i'.  Lushiugton  in  the  case  of  The  (Joiumbus,  as  quoted, 
supra.) 

Fiirtlier  comment  seems  unnecessary. 

(6) 

Tlie  case  of  Phillips  v.  London  and  N.  W.  R.  R.  (5 
('.  1'.  1).,  280)  was  an  action  for  personal  injuries  and 
tor  piiin  and  suffering-,  by  a  passeng-er  on  a  railroad 
train.  He  w^s  ?>  surgeon  in  active  practice,  and  it 
was  the  ordinary  case,  g-overned  by  its  own  rules, 
tor  siK'li  damages,  including",  of  course,  loss  of  earn- 
iiiii'  power  directly  traceable  to  the  accident,  as  a  jury 
iui<>lit  see  fit  to  giv^  under  the  evidei\ce.  Cases  for 
tlk'  pliysical  injury  of  [)ersons  are,  of  course,  governed 
1)\'  a  rule  as  lo  damages  entirely  distinct  from  those 
of  iiijuric  s  to  property  or  property  rights. 

(6) 

'llic  Fortune  Bay  cases:  There  are  some  unfortunate 
omissions  in  the  statement  of  facts  in  this  citation 
wliich  will  be  supplied. 

The  claim  was  for  >^12(),000,  and  while,  as  stated, 
''tlicio  were  but  four  vessels  out  of  the  fleet  of  twenty- 
two  actually  fishing,"  it  appeared  that  those  four  vessels 
tfoc  liandling  the  seines  in  behalf  of  and  for  th&  benefit 
'[f  flic  odire  fleet  of  twenty-two. 

It  further  a])peared,  and  was  proved  incoutestably, 

B  s 8 


114 


DAMAGES — I'ROSrECTIVE    CATCH. 


tliiit  ill  the  seiiu's  <d  the  fiiiir  of  flic  fort,  iuul  tliercfore 
in  possession,  there  Avere  sutKcieiit  lish  to  ^ive  n 
full  caiy/o  to  cpcri/  one  of  the  twentij-tivo  vessels;  uml 
that  by  the  act  of  the  tort  feasors,  the  i)ropertv  in 
fish  so  actually  at  the  time  in  possession  of  the  fleet 
was  lost  to  them. 

I'he  elaiiu,  therefore,  was  not  for  pros})e('tive  profits, 
but  for  pro])erty  actually  taken  from  the  fleet. 

There  was  no  agreement  or  decision  "•iviny  esti- 
mated  profits  or  averaj^e  ])rofits,  or  ])ros})ective  catdi, 
or  probable  catch.  The  result  was  the  })ayment  of 
87;"), ()()()  on  the  claim  thus  made  for  812(),o6o.  This 
authority  is  adverse  to  the  liritish  contention,  l^lieri' 
was  absolute  certainty  as  to  amount  on  the  evidence. 

Of  course  none  of  the  vessels  were  lost  to  the 
owners. 

The  statement  in  the  Ikitish  ar<iument  is  compared 
with  the  record  c;f  the  cases  appearin<>-  in  vol.  72, 
Brit.  State  Tap^-s,  1S8(),  1881,  i)articularly  at  pp. 
1282,  128i),  i;}()7,  and  with  the  f(dlo\vin<>-  (pu)ted  from 
that  record: 

The  evidence  ir.  this  ca.se  shows  tliat  the  catch  which  the 
United  States  iishing  lleet  on  tliis  occasion  actually  realizod 
was  exceptionally  hirji'c,  and  would  have  supjilied  in-ofitable 
cargoes  foi'  all  of  them  (p.  12S{)). 

Moreover,  it  was  admitted  in  terms  by  (xreat 
Britain  as  a  matter  of  fact  that  beyond  any  contiii- 
n'ency  or  speculation  if  the  American  vessels  had  not 
been  distin'))ed  they  would  have  filled  every  one  of 
the  vessels. 

So  that  we  nnist  differ  from  the  conclusion  of  tlw 
British  ar<>ument  here,  on  this  citation,  that  the  set- 
tlement by  the  ])ayment  of  a  luni])  sum  "im})lied  the 
consent  of  both  nations  in  the  })rinciple  involved  iii 
tlie  claim  for  catch." 

If  the   })rinciple  of  prospective  catch  should  ever 


DAMAGES PROSPECTIVE    CATCH. 

lie  ((lUccdcMl  at  all  in  rases  where  the  owner  suf- 
icis  ;i  total  loss  of  the  earnin<i'  iiiediiiin,  there  would 
lie  no  reason  or  lo<i,'ie  in  allowinji'  him  i'or  one  season 
(iiil\  :  his  loss  ot"  earnino's  are  certainly  continuous, 
iiuil  this  the  law  recog-nizes  whenever  it  <>'ives  inter- 
est, which  the  l)ooks  invariably  speak  ot"  as  the  com- 
pensation g-iven  in  lieu  of  prospective  profits,  which 
ran  not  be  allowed. 

A  moment's  reflection  will  be  convincing  thai  if 
the  theory  of  future  profits  is  correct  at  all  it  can 
not  he  a  matter  of  a  season  or  a  year,  but  nuist  find 
tor  its  commencement  and  end  the  principle  that  the 
iiwm  r,  having  h^st  the  earning  instrument,  he  shoidd 
he  entitled  to  what  it  would  have  earned  him  to  date, 
;is  tor  instance  in  the  case  of  tort  for  a  continuing 
iiiiisiiiice. 

The  remaining  proposition  of  the  British  argument 
ill  siip}»ort  of  the  claim  for  ])rosj)ective  profits,  resting 
mi  cises  like  that  of  Allison  iK  Chandler  (11  ^Mich., 
■  A'l),  cases  of  personal  injuries,  cases  of  profits  ou 
special  contract,  and  cases  invcdving  malice,  wanton- 
ness. oruToss  negliu'ence,  would  not  be  seriously  con- 
H(lii((l  but  for  the  fact  that  counsel,  for  whose  learning 
and  nhility  there  is  entertained  the  most  sincere  and 
jinifonnd  res})ect,  have  again  so  far  yielded  to  their 
instriicti(ms  as  to  set  it  down  for  the  consideration  of 
tills  High  Connnission. 

Hu'  gulf  is  so  wide  between  the  pro])Osition  np))ly- 
iiiu'  licre,  as  heretofore  discussed,  and  this  one,  as  to 
lieiinit  of  no  contact  or  induction  at  any  point,  and 
the  Ncry  text  writers  and  cases  cited  to  sustain  the 
latter,  as  will  be  seen  presently,  i)oint  out  the  broad 
'listinction. 

It  will  be  treated  inider  the  head  oi  damafies  puni- 
>"ri/  (ir  vindictive  in  respect  of  rvantminess,  malice,  or 
'ji'iiss  iicfilifience* 


116 


•J 


'Seep.  126,  infra. 


116 


DAMAGES- 


-"  WARNINGS." 


Compensation  in  fespect  of  ivarninys. 

It  Avill  be  seen  b}'  tlie  reconl  that  with  the  excep- 
tion of  schooners  owned  in  whole  or  in  part  by  Aineii 
can  citizens,  there  are  but  two  cases  in  which  any 
substantial  recovery  can  ))e  had  as  for  "warnings  out," 
or  as  to  which  the  question  of  damages  is  worthy  of 
serious  consideration. 

In  the  other  cases  of  warnings  it  appears  by  the 
evidence  either  that  there  was  found  to  be  no  warn- 
ing by  the  Paris  Tribunal,  or  the  warning  ..o  found 
was  not  heeded  so  far  as  to  materially  affect  the 
voyage. 

It  is  conceived  that  on  principle,  cases  of  warnings 
should  be  treated  as  are  cases  of  marine  tort  result- 
ing, not  of  course  in  loss  of  the  rvs  or  any  part  of  it, 
but  in  detention  or  interru])tion  of  the  voyage,  uni- 
versally considered  under  the  head  of  "Partial  loss." 
In  such  cases  the  doctrine  heretofore  discussed,  as 
has  been  seen,  a})plies  with  ecjual  force  against  pro- 
spective profits  as  such — the  rule  against  contingencies 
being  e(}ually  strong. 

This  distinction  in  the  rule  of  damages  in  cases  of 
partial  loss,  or  detention  from  earning,  is  nowhere 
more  clearh'  drawn  than  bv  Dr.  Lushinoton  in  the 
case  of  the  Colidnhiis.     (Supra,  3  W.  Rob.,  p.  159.) 

Sedgwick,  in  his  work  on  Damages  (Vol.  1,  p.  257), 
after  discussing  the  rule  in  cases  of  partial  loss  under 
the  head  "Cases  of  entii'e  loss  do  not  fall  within  the 
rule,"  says: 

It  is  important  to  observe  that  actions  brought  for  the 
immediate  destruction  of  property  do  not  involve  any  ques- 
tion of  gain  prevented.  If  payment  is  asked  for  destruction— 
that  is,  for  the  whole  value  of  the  property — it  ia  ui)ou  tlie 
theory  that  the  plaintiff's  entire  interest  in  the  property 
seized  at  the  time  of  the  injury  was  replaced  by  a  right  to 
have  the  value  of  the  property  in  money.  Since,  therefore, 
the  plaintilf  no  longer  has  title  to  the  property,  he  can  no 
longer  claim  he  might  make  a  future  gain  from  it,  and  his 
recovery  is  limited  to  the  value  of  the  property  at  the  time 
and  place  of  destruction,  with  interest. 


DAMAGES "  WARNINGS." 


117 


And  see  Dr.  Lusliinoton  in  the  case  of  tlie  Chfcle 
(Swi'.l).  Ad.  E.). 

In  siu'li  eases  the  Supreme  Court  of  the  United 
Stiitcs  have  adopted  tlie  rule  of  tlie  En<>'hsli  judg- 
mciits  in  cases  of  partial  loss,  disthigniishinf^  alwaj^s 
lu'twcen  a  case  of  total  loss  and  a  case  of  partial 
iliiiiiau'e  or  detention. 

Williamson  v.  Barrett  (13  Howard,  101)  was  a 
case  of  this  kind,  and  the  court,  at  pag-e  110,  says: 

The  jury  was  instructed  if  tbey  found  for  the  plaintitfs  to 
give  damages  that  would  remunerate  thorn  for  the  loss  nec- 
essarily incurred  in  rsiisiug  the  boat  and  repairing  her,  and 
also  for  the  use  of  the  boat  during  the  time  necessary  to 
make  the  repairs  and  tit  her  for  business. 

\\y  tlie  use  of  the  boat  we  understand  what  she  would  pro- 
duce to  the  plaintiffs  by  the  hiring  or  chartering  of  her  to 
mil  upon  the  river  in  the  business  in  wliich  she  had  been 
usually  engaged.  The  general  rule  in  regulating  damages 
in  cases  of  collision  is  to  allow  the  injured  party  an  indem- 
nity to  the  extent  of  the  loss  sustained.  This  general  rule 
is  obvious  enough,  but  there  is  a  good  deal  of  ditliculty  in 
stating  the  grounds  upon  which  to  arrive,  in  all  cases,  at  the 
])roi)ei'  measure  of  that  indemnity.  The  expenses  of  raising 
tlie  boat  and  of  repairs  may,  of  course,  be  readily  ascertained, 
and,  ill  respect  of  the  repairs,  no  deduction  is  to  be  made,  as 
in  insurance  cases,  for  the  new  materials  in  place  of  the  old. 
The  claim  lies  in  estimating  the  danuige  sustained  by  the 
loss  of  the  service  of  the  vessel  while  she  is  undergoing 
it'iiairs.  That  an  allowance  short  of  some  compensation  for 
tills  loss  would  fail  to  be  an  indemnity  for  the  injury  is 
apparent. 

Tliis  (juestion  was  directly  before  the  court  of  admiralty  in 
KiiRland,  in  the  case  of  the  Oazelle,  decided  by  Dr.  Lush- 
iii};toii,  and  in  deciding  it  the  court  observed:  "That  the 
imrty  who  had  suffered  the  injury  is  clearly  entitled  to  an 
adcfiiiate  compensation  for  any  loss  he  may  sustain  for  the 
(k'teiitioii  of  the  vessel  during  the  period  which  is  necessary 
I'm-  tlu"  completion  of  repairs,  and  furnishing  the  new  articles." 

In  ilxing  the  amount  of  the  damages  to  be  paid  for  the 
(kteiition,  the  court  allowed  the  gross  freight,  deducting  so 
mucli  as  would  in  ordinary  cases  be  disbursed  on  account  of 
tlic  Nliii)'s  expenses  in  earning  it. 

A  case  is  referred  to,  decided  in  the  common  law  courts,  in 
^vbicii  the  gross  freight  was  allowed  without  deductions  f«^ 


118 


DAMAGES — "warnings." 

expenses,  Avliicli  was  disapproved  as  iuecpiitable  and  exceed- 
ing an  adecpiatc  compensation,  and  the  qualification  weliave 
stated  laid  down. 

This  rule  may  aflbrd  a  very  lair  indemnity  in  cases  where 
the  repairs  are  coni])leted  within  the  period  usually  ocoiipid 
in  the  voyage  in  which  tlie  I'reight  is  to  be  earned.  I>ut  if  a 
longer  ix'riod  is  refpiired,  it  obviously  falls  short  of  an 
ade(|uate  allowance.  Neither  will  it  apply  where  the  vessel 
is  not  eugiiged  in  earning  freight  at  the  time.  Tlie  principle, 
however,  governing  a  court  in  adojjting  the  freight,  wliicli  the 
vessel  was  in  the  act  of  earning,  as  a. just  measure  of  compen- 
sation in  the  case,  is  one  of  general  ai)plicatiou.  It  looks  to 
the  capacity  of  the  vessel  to  earn  freiglit  for  the  benefit  of 
the  owner,  and  conse(|uei.  loss  sustained  while  deprived 
of  her  services.  In  other  words,  to  the  amount  she  would 
earn  him  on  hire. 

It  is  true  in  that  case  a  ship  was  engaged  in  earning 
freight  at  the  time  of  the  collision;  and  the  loss,  therefore, 
more  fixed  and  certaiu  than  in  a  case  where  she  is  not  at  the 
time  under  a  charter-party,  and  where  her  earnings  must,  in 
souie  measure,  depeiul  upon  the  contingency  of  obtaining  for 
her  employment.  lj\  lioirerer,  ire  look  to  Ihc  (Icuiaiul  in  tlie 
inarhci  for  rcsscls  of  the  description  that  lias  been  (lisableil 
and  to  the  price  there  irhich  the  owner  could  ol>tain  or  might 
hare  obtained  /'or  her  hire,  as  the  )neasiire  of  compensation, 
all  this  r.necrtaintii  disappears.  If  tliere  is  no  dennmd  for 
the  employment,  and  of  course  no  hire  to  be  obtained,  no 
compensation  for  the  detention  during  the  rei)air8  will  be 
allowed,  as  no  loss  would  be  sustained. 

But  if  it  can  be  shown  that  the  vessel  might  have  been 
chartered  during  the  period  of  repairs,  it  is  impossible  to 
deny  that  the  owner  has  not  lost  in  conseiiuence  of  the  dam- 
age the  amount  which  slie  might  have  thus  earned. 

The  market  price,  therefore,  of  the  hire  of  the  vessel* 
applied  as  a  test  of  the  value  of  the  services,  will  be,  if  uot 
as  certain  as  in  a  case  where  she  is  under  charter  party,  at 
least  so  certain  that  for  all  practical  i)uri)oses  in  the  admin- 
istration of  justice  no  substantial  distinction  can  be  made. 
It  can  be  ascertained  as  readily  and  with  as  much  precision 
asthepriceof  any  good  connnodity  in  the  nuuket,  and  afford;* 
as  clear  a  rule  for  estinuiting  the  damages  sustaiucd  on 
account  of  the  loss  of  her  servi(!es  as  exists  in  the  case  of 
danmge  to  any  other  description  of  personal  property  of 
which  the  party  has  been  deprived. 

In  the  case  of  the  6Vr:^e//6'  they  held  the  i)osition  that  an 
allowance  of  freight  afforded  a  full  indemnity  for  the  deten- 
tion of  the  vessel  while  undergoing  repairs.     This  would  be  so 


as  ah'eady  stat 
wimlil  have  bei 
it  is  certain  th 
laid  down  umU 
was  entitled  tc 
sustain  for  the 
was  necessary 
inj;  new  article 
at  tiic  time  wa 
ticiiliir  case  uii 
allor  l('d,doubl 
lino,  that  the  i 
was  the  correc 
cases.  There 
of  the  vessel,  I 
cable  irrcspect 

The  case  ' 
In  ill  the  tore; 
111!  the  siibje 
cases  ot"  totii 

It  may  he 
the  Ch/di',  sii 
T\\  iss  as  refi 
.■'//'■,  and  sn}' 
who  re('eive( 
jirn|)('rt\"  was 

1  'i'.  Liislii 
tnic,  hut  it  ( 

Tin'  JJrfse 
lisidii,  where 
eiiL;';iii'e(l  ill 
well,  althoiii 
evidence  to 

Ni>  authorit 
be  induced  to 
iiuestion  of  en 

besides,  tin 
hlo  ehai'ge  on 
I'liriiiiig  thatw 


AL'.iin  a  cnsc 

tract. 


DAMAGES- 


-"WAUNINGS.'' 


119 


;is  iiliCiuly  stated,  if  tliey  were  iiiadi'  witliin  the  jieiiod  she 
would  liiivc^  been  eii}i;iiged  in  earning  it.  It'  it  were  otherwise, 
it  is  certain  that  tiie  indemnity  allowed  Cell  short  ol'tlie  rule 
laid  down  under  winch  it  was  made,  wliieh  was  that  the  party 
was  entitled  to  adecjuate  compensation  for  any  loss  he  might 
sustiiin  for  the  detention  of  thevessel  <luring  the  jteriod  which 
was  necessary  for  the  completion  of  the  repairs  and  furnish- 
iiii;  new  articles.  The  allowance  of  freight  she  was  eiirning 
at  riie  time  was  but  a  mode  of  arriving  at  the  loss  in  a  par- 
ticiiliir  case  under  the  general  rule  thus  broadly  stated,  and 
allbr  led,  doubtless,  lull  indemnity.  We  aie  of  opinion,  there- 
lore,  that  the  rule  of  damages  laid  down  by  the  court  below 
was  the  correct  one, and  is  properly  applicable  in  all  similar 
cases.  There  was  no  (piestion  made  in  respect  of  the  freight 
(if  tiie  vessel,  hence  the  general  principle  existing  was  api»li- 
cahle  irrespective  of  this  element  as  intlneiuiing  the  result. 

Tlic  cMsc  (>r  the  (iiuvlle  (2  W.  Kol).,  27!))  referred 
til  in  the  tore»«'()iii^'  opinion,  is  tlie  leadinu'  En;^lisli  case 
nil  the  snbject  of  partial  loss  as  distiniiui-^lit'd  from 
ciiscs  of  total  loss. 

it  may  lie  observed  in  passinii'  tlnit  in  the  case  of 
tile  Cli/di',  sn])ra  (Swnl).),  Dr.  Lnshin^ton  (piotes  Dr. 
T\\  iss  as  refei'rin^-  to  the  above-cited  case  of  the  (ra- 
:ill'\  and  sayi.i^",  that  a  party  was  in  a  l)etter  situation 
\vIh»  received  only  partial  dania^'e  than  (tne  whose 
|ii(ijK'i't\'  was  tot.vlh'  (lestro'S'ed. 

Df.  Lushini'ton  eonmients:  "This  is  innh>ubtedlv 
true,  hilt  it  does  not  alfect  the  prin('i])le." 

Tlir  JJcfsci/  Ca'nies  (2  Ifau'.,  21))  was  a  case  of  eol- 
lisidii,  wherein  the  injured  vessel  was  at  the  time 
I'lionu'cd  in  salva^v  of  a  foreij^'ii  ship,  and  Loi-d  Sto- 
wcll.  althou.ii'h  holdiuii"  that  there  was  not  sullicieiit 
evidence  to  sup))ort  the  recovery,  said: 

Nil  authority  has  been  mentioned  by  which  the  court  might 
be  induced  to  consider  itself  excluded  from  considering  a 
iHicstioii  of  conse(juentiid  damage.     *     *     * 

I'x'sidcs,  tliisis  not  a  mere  claim  for  conse(|uential  or  proba- 
ble charge  only,  if  the  smack  was  actually  in  the  pursuit  of 
•  iiviiiMg  that  winch  itliad  been  stipulated  she  should  receive.* 


Ajjiiiu  a  case  of  certain  rtaniages  in  tort  measured  by  an  existing  con- 


tract. 


120 


DAMAGES "warnings." 


And  sc^e  wliero  the  distiiu'tions  Jiro  dnnvu  between 
total  and  })iirtial  loss,  and  yet  where  in  every  case 
mere  ])rospe('ti^■e  daniMji'es  are  excluded,  tlio  following: 

Hadley  v.  Jiaxendale  (i)  Excheciuer,  Uep.,  341),  a 
case  of  special  contract. 

The  yoffnif/hi/l  (i)  P.  D.,  109,  supra);  delay  by 
collision  resultinji'  in  the  cancellation  of  a  charter- 
party — the  cliarterers  having-  a  right  to  cancel  the 
charter-])arty  for  <lelays,  had  canceled  it,  and  the 
court  held  the  tort  feasor  liable  for  the  loss  of  the 
charter-party,  the  actual  loss  being  capalde  of  exact 
computation  as  Ijetween  the  amount  to  be  paid  for 
the  charier  and  the  amount  actually  earned  by  the 
ship  in  less  profitable  employment;  but  in  that  case 
it  was  held  that  there  nnist  be  deductions  from  that 
sum  for  wear  and  tear,  for  the  difference  in  the  leng-tli 
of  the  voyages,  and  for  the  uncertainty  incident  to 
all  sea  voyages. 

The  Consett  (5  V.  1).,  229)  was  a  case  of  collision 
and  loss  of  charter  thereby.  Of  course  the  charter 
was  in  esse,  and  the  loss  ca})able  of  si)ecific  compu- 
tation. 

On  the  other  hand,  in  the  Fnrana  (2  P.  D.,  118), 
"Nvhich  was  a  suit  for  loss  on  account  of  a  delay  of 
three  months,  the  loss  having  oeen  alleged  on  the  fall 
in  the  price  of  cargo,  and  there  having-  been  no  con- 
tract for  the  i)rice,  it  was  held  that  there  c(mld  be  no 
recovery  for  the  loss  of  market. 

The  Clarence  (3  W.  Kob.,  283)  was  a  case  of  col- 
lision and  detention.  In  tliis  case  it  was  atteni])te(l 
to  ])rove  the  loss  b}'  evidence — as  in  this  case — of 
average  earnings  of  other  vessels. 

The  com't  said: 

The  question  which  I  have  to  determine  is  not  the  rate  at 
which  such  a  vessel  as  the  Clarence  might  be  hired  out,  but 
how  much  tl)e  company  have  actually  lost  by  her  detention 
whilst  under  repair.    *    *    * 


DAMAGES- 


-"  WARNINGS." 


121 


*  *  *  In  order  to  entitle  a  party  to  be  iiKleinnified 
1(11'  what  is  termed  in  this  eourt  a  eon8e(|nential  loss, 
btiii^  tor  the  detention  of  his  vessel,  two  things  are  abso- 
lutely necessary,  actnal  loss  and  reasonable  proof  of  the 
aiiiomit.     *     *     * 

riic  objection,  it  api)ears  to  me,  has  been  founded  upon  a 
iiiisii|)prehension  of  tlie  principle  upon  Avhich  a  court  pro- 
ceeds in  assessing  the  amount  of  damage.  It  does  not  fol- 
low, as  a  matter  of  iwcessitjf,  that  anytliing  is  due  for  the 
detention  of  the  vessel  whilst  under  repair.  Under  some 
cireuiiistances  undoubtedly  sncli  a  conse<inence  will  follow, 
as  lor  example,  where  a  fishing  voyage  is  lost  or  where  a 
vessel  would  have  been  beneficially  employed.  The  onus  of 
proving  her  loss  rests  with  the  plaintiff,  and  this  onus  has 
not  been  discharged  upon  the  present  occasion.  Had  the 
owners  of  the  Clarence  proved  that  the  vessel  would  have 
em  lied  freight  and  that  such  freight  was  lost  by  the  collision, 
tlie  ease  would  have  fallen  within  the  principle  to  which  I 
liave  last  adverted. 

A  well-reasoned  case  on  an  exhaustive  review  of 
tlic  authorities  is  AVolcott  et  al.  v.  JMount  (30  N.  J. 
haw,  •2G2-271). 

Tlie  court  sa^'s: 

It  must  not  be  supposed  that  under  the  principle  of  Ilad- 
ley  '•.  Baxendale  (the  special  contract  case  in  9  Exc,  sui)ra) 
mere  speculative  profits,  such  as  might  be  conjectured  to 
liave  been  the  probable  results  of  an  adventure  which  was 
defeated  by  the  breach  of  the  contract  sued  on,  the  gains 
IVoin  which  are  entirely  conjectural,  with  resjtect  to  which  no 
means  exist  of  ascertaining,  even  approximately,  the  prob- 
able results,  can,  under  any  circumstances,  be  brought  within 
the  range  of  damages  recoverable.  The  cardinal  principle 
in  relation  to  the  damages  to  be  compensated  for  on  the 
breaeh  of  a  contract,  that  the  plaintiff  ranst  establish  the 
quuntiun  of  his  loss,  by  evidence  front  which  the  jury  will  be 
able  to  estinuvte  the  extent  of  his  injury,  will  exclude  all 
sueb  elements  of  injury  as  are  incapable  of  being  ascertained 
by  the  usual  rules  of  evidence  to  a  reasonable  degree  of 
certainty. 

/'"/•  instance,  profits  expected  to  he  made  from  a  whalinff 
''(>!l(i!ie,  the  ffains  from  ichich  depend  in  a  (jreat  measure  upon 
chance,  arc  too  purely  conjectural  to  be  capable  of  entering  into 
mmpiiisation  for  the  nonperformance  of  a  contract  by  reason 
of  wliich  the  adventure  was  defeated.  For  a  similar  reason, 
tbe  loss  of  the  value  of  a  crop  for  which  the  seed  bad  not 


122 


DAMAOES- 


-"  WARNINGS." 


been  sown,  tlio  yield  from  wliicli,  if  pliiiited,  would  depend 
ii]>oii  the  eoiitiiigeneies  of  weather  aiul  season,  would  be 
excluded  as  incajiable  of  estiiuatiou  with  that  def^ieo  of 
certaiuty  which  the  law  exacts  in  the  proof  of  dainafies, 
l!ut  if  tiie  vessel  is  under  charter,  or  engaged  in  a  trade,  tiie 
eaniiufis  of  wiiich  can  he  ascertained  by  reference  to  the 
usual  schedule  of  freijihts  in  the  market,  or  if  a  crop  has  been 
sown  on  the  {^round  prepared  for  cultivation,  and  the  plain 
titl's  complaint  is  that  because  of  the  iufeiior  quality  of  the 
seed  a  croj)  of  less  value  is  [)roduced,  by  these  circum 
stances  the  means  would  be  fnrnislu'd  to  enable  the  Jury  to 
make  a  pr(»per  estinuition  of  the  injury  resulting  from  tlie 
loss  of  prolits  of  this  character. 

'^rhc  ATiiylK'N'  case,  I'cportc"!  in  4  niafclit'.,  ^3!),  was 
decided  l)y  Nelson,  circnit  jndu'c,  iittcrw.irds  of  the 
Supi'cnu'  JVmk'Ii  of  the  United  Stutcs.  It  was  an  ap- 
peal from  the  decree  of  the  district  c(uu't  in  a  case  of 
c(»llision,  partial  daniauc,  find  detention. 

Justice  N(;lson  says: 

The  aggregateof  the  bills  jtroved  for  repairs,  ete.,is$l,(i08.ii.'V 
The  commissioner  had  reported  damages  to  the  amount  of 
$;{,l;()1;.o().  if  interest  be  added,  say  for  live  years  fnmi  the 
1st  of  November,  IS.jt,  to  the  date  of  the  report,  October  19, 
18.~)!),  upon  the  bills  for  rei)airs,  etc.,  which  interest  is  $554,17, 
making  the  aggregate  >'2,I(»L!.8(),  which,  deducted  from  the 
amount  reported,  leaves  a  balance  of  $1, ()!)!>..")(),  which  must 
have  been  aUowed  for  the  fointeen  days' demurrage.  I  am 
not  satisfied  that  the  proofs  bring  the  case  upon  the  question 
of  damages  within  the  rule  laid  down  in  Williamson  r.  Bar- 
rett (l.'i  Howard).  A  good  deal  of  the  testimony  was  gen- 
eral aiul  turned  upon  mere  o[)inion  as  to  the  probability  of 
employment  in  the  towing  business,  and  the  amount  of  the 
earnings  if  emi)loyed. 

This  kind  of  proof  is  too  speculative  and  eontingent  to  be 
a  foiuidation  for  any  rule  of  damages.  It  is,  at  best,  a  con- 
jecture. The  true  question  Avithin  the  case  of  Williamson  r. 
Barrett  was  what  could  the  tug  have  been  chartered  for  per 
day  in  the  business  of  towing,  reyard  heiu<i  hud  to  the  mtirM 
piico  i)i  the  eitji  of  yew  York.  This  would  have  brought  the 
question  down  to  some  degree  of  certainty  and  attbrded 
ground  for  an  intelligible  allowance  or  not  of  the  loss  which 
the  libellant  had  actually  sustained  by  the  delay  during  the 
repairs.  The  facts,  as  left  by  the  examination  by  the  com- 
missioner, are  too  uncertain  to  form  a  basis  of  any  allowance 


iVKlence 


DAMAGES- 


-"  WARNINGS." 


123 


till  tlic  (U'teiitioii.  Tliey  are  s])e('ulativo  and  coiijecttural  and 
iiKMi'  ()])ini()n,  to  wliicli  no  limit  or  rule  can  be  applied,  and  it 
ciiii  never  lay  tlie  foundation  for  the  action  of  a  court  on  this 
viilijci't.  I  shall  tlierefore  strike  out  the  item  of  deinurra<;e, 
"l,!!!!!*.."!!),  and  coniirm  the  decree  for  .'!<l.',l()2.8();  costs  to  he 
iilliiwed  on  the  appeal  to  neitluir  party  as  against  the  other. 

FIctclicr  r/rayk'iir  (17  ('.  li.,  20)  is  soinetinics  cited 
(111  the  (lucstion  uudiT  discussion.  T\\ii  \)o\u\  was  not 
littiiic  tlu'  court  or  raised,  and  tlie  follouin^-  is  the 
^^•ll;ll)Us  of  tlio  case: 

ill  an  action  for  the  noncompletion  of  a  shij)  pursuant  to 
the  coiitraet,  the  jury  having"  given  by  way  of  damages  the 
(lilVt'icnce  between  the  uet  freight  which  the  vessel  probably 
vVduld  have  earned  had  she  been  ready  at  the  time  stipulated 
and  tlie  amount  actually  earned  by  her  when  delivered  some 
iiioiitlis  later,  when  freights  in  the  i)articular  trade  were 
liiwcr.  IK)  qi(e,stii>n  hariiifi  been  rtdsefl  at  the  trial  as  to  the 
priiK  ii)le  upon  irhieh  damayea  oitf/ht  to  have  been  assessed,  the 
couit  refused  to  disturb  their  verdict. 

Evidence  was  merely  introduced  as  to  tlie  value  of 
mil'  \(iyao'e  which  w(»uld  have  been  inulertaken  had 
tlir  vessel  heen  delivered  to  the  plaintifls,  and  the 
tlvi^ht  to  be  earned  was  the  market  rate  which  "\va.s 
tixcd  and  subject  to  absolute  proof. 

And  see  the  same  distinction  and  ])i'inci])le  a])])lied 
ill  I'.oston  IJailwav  r.  O'Heilly  (15.S  IT.  S.,  334),  Kich- 
111011.1  Railroad  t'.'Hlliott  (14!)  U.  S.,  26()),  Howard  v. 
Stillwell  Co.  (135J  U.  H.,  199),  Griffin  v.  Colver  (16 
N.  \.  court  of  appeals,  4<S9).  In  the  last  case,  on  a 
siiiiihu'  ([uestion,  Mv.  Justice  Selden,  in  deliverin_i«'  the 
•  I] (ill ion  of  the  court,  said: 

111  an  action  against  the  vendor  for  not  delivering  chattels 
>i»l(l.  the  vendee  is  allowed  the  market  price  for  the  day  lixed 
tor  the  delivery.  Althomjh  this,  in  both  eases,  amounts  to  an 
iill(nc<(nce  of  profits,  i/et,  as  those  profits  do  not  depend  npon, 
(iiiji  vontinficnvff,  rccoi'try  is  permitted. 

it  is  regarded  as  certain  that  the  goods  would  b.ave  been 
woi  til  the  established  market  price  at  the  place  on  the  day 
wlu'ii  and  where  they  should  have  been  dellvei'ed. 

Uu  the  other  hand,  iu  cases  of  illegal  cai)ture,  or  of  an 


124 


DAMAGES- 


■"  WARNINGS." 


iiiHuraiico  on  goods  lost  at  sea,  there  oiii  be  no  recovery  for 
the  i»robiible  loss  of  profits  at  the  i)ort  of  deHtiiiatioii.  The 
principal  reason  for  the  difference  between  those  (iases  ami 
that  of  failure  to  transjmrt  j,'oods  upon  land  is  that,  in  the 
latter  case,  the  time  when  tlie  {jfoods  sliould  have  been  deliv- 
ered, and  conse<iuently  that  wiien  the  market  price  is  t(»  be 
taken,  can  be  ascerfciined  with  reasonable  certainty,  while 
in  the  former  the  fliu-tuation  of  the  markets  and  the  contin- 
gencies affecting  the  length  of  the  voyage  render  their 
calculation  of  profits  speculative  aiul  unsafe. 

Tliis  jiido-mont  is  an  exlianstivc  exaniiiintion  of  the 
tiutliorltios  applyinji'  to  the  present  (jnestion. 

Taleott  r.  (jrippen  (')2  Mich.,  (138),  decision  bv 
C(X)ley,  (J.  J. 

In  Hrown  v.  Smith  (12  Ciisliing-,  3(!(!),  tlie  court 
says: 

The  conjectural  or  possible  profits  of  a  whaling  voyage 
can  not  be  taken  into  consideration  in  estinmting  the 
damages. 

On  a  full  review  of  the  authorities  in  cases  of  tort 
and  contract,  it  caii  be  said  with  confidence  that  there 
is  not  one  tint  allows  })rospective  ])rofits  or  ])rosj)ec- 
tive  catcli  as  s^uch,  or  permits  any  such  rule,  and 
profits  as  a  nieasure  of  damag-es  in  cases  of  tort  or 
contract  lia^e  never  been  allowed  as  such,  save  where 
at  the  time  of  the  tort  or  of  the  breach  of  contract 
evidence  could  be  adduced  of  a  ceitain  character  in 
the  nature  of  a  definite  and  certain  amount  to  be 
realized  if  the  breach  or  the  delay  from  tort  had  not 
occurred. 

What  should  be  the  ride  then  in  case  of  warnings 
and  the  loss  of  the  season's  Inisiness? 

It  should  be  borne  in  mind  that  the  compensation 
to  be  recovered  can  oidybe  applied  to  the  loss  of  the 
season  in  Bering  Sea.  There  was  no  inteiTuption 
with  the  sealing  business  in  the  North  Pacific  or  in 
the  Asian  seas. 

On  the  other  hand,  unlike  the  cases  of  detention 


DAMAQES- 


-"  WARNINGS." 


125 


wlifi'c  business  is  lost,  tliei'o  is  no  wcnr  and  tear  to 
\w  cstininted,  as  tlie  sliij)  did  not  enter  upon  the  voy- 
iinv,  tor  detention  from  wliieii  coni])ensation  is  claimed, 
(jliioad  the  tort,  every  ship  and  e<[uii)ment  was  as 
<^(Hu\  as  ever  after  the  ],)eriod  of  delay. 

A  fair  charter  value  in  such  cases  would  be  the  rule. 

I'nit,  on  the  wh<yie,  it  is  .submitted  that,  as  by  inter- 
iiiitimial  law  between  nations  there  is  no  rule  as  to 
interest  or  the  rate  of  interest,  somethin<>'  in  the  nature 
iifii  sul)stantial  return  on  the  amount  invested  should 
l)e  ;i  warded  to  the  owners  of  the  ships  of  British  sub- 
jects for  the  season's  sealing-  voyage  for  which  the 
ve.isel  was  equipped,  and  from  realizing-  on  which  she 
wiis  prevented  by  the  warning-.  The  principle  adopted 
hy  the  Board  of  Trade  in  their  reports  on  the  claim 
(if  the  whalers  in  the  case  before  the  Geneva  Tri- 
liiuiid  is  a  reasonable  one.* 

►Story,  J.,  in  the  case  of  the  Livehj  (1  Gall.,  315), 
which  was  a  case  of  unlawful  capture,  said: 

1  shall  allow  demurrage,  iuchuling  therein  wages  and 
expenses  of  the  ship  from  the  time  of  capture  until  she  could 
retmn  to  the  place  of  capture. 

Substantially  the  same  principle  was  involved  in 
the  decisions  that  have  been  considered  in  the  discus- 
sion of  partial-loss  cases. 

In  this  connection  it  should  be  observed  that  in  the 
c;is(;  of  the  forty-one  whalers  as  to  which  there  was 
so  much  discussion  as  to  prospective  profits  in  the 
Greiieva  case,  many  of  the  whalers  were  not  destroyed, 
Init  were  ca[)tured  and  bonded,  and  driven  from  the 
sealing-  grounds.  Others  were  utilized  by  the  captors 
t'tir  the  purpose  of  relieving  their  ships  of  captives 
taken  from  other  vessels  destroyed,  and  thus  were 
not  <»nly  driven  from  the  sealing  grounds,  but  were 
sent  on  the  service  of  the  captors. 

*  p.  97,  8upra. 


120  DAMAGES PUNITORY,    ETC. 

Tliis  appears  l)y  the  seliediile  and  .statement  of 
claims  in  the  record  of  tlie  i)roceedin<>-s  at  (TCiievn. 
but  for  more  convenient  reference  as  to  the  facts  the 
opinion  of  tlie  American  Connnissioners  of  the  Aln- 
bama  chiims  in  the  case  of  the  Jan>cs  Maurji  and 
others  may  be  referred  to. 

Dainai/rs  piut'dorii  or  vindictive  in.  respect  of  wantonness, 
malice,  or  <;ross  nef/Jif/ence. 

In  so  far  as  the  opposin<»'  argument  chiims  daniages 
for  acta  of  wantoimess,  insult  to  the  flag-,  and  the  like, 
questions  wholly  between  nations,  the  ])osition  seems 
to  be  that  in  some  way  an  individual  subject  nmv 
succeed,  as  it  were,  to  the  usufruct  or  satisfr.ction  that 
one  nation  may  demand  of  another  for  such  acts,  and 
that  this  vindication  of  national  honor  may  be  trans- 
nuited  into  cash  for  his  benetit.  On  this  jn'opositlou 
enough  has  ))een  said  and  suflicient  nithority  cited. 

Inasmuch,  howevei",  as  some  wei^^ht  is  attached  to 
the  position  of  the  American  counsel  at  Geneva  in 
respect  of  this  class  of  (lamaji(vs  (see  the  American 
])osition  (pioted  at  \)\).  20-21  of  the  British  arjiunient) 
that  point  is  ))riefly  referred  to. 

TVi'.  American  argument  stated  the  rule  of  dainaj>e? 
which  applies  in  all  cases  of  malice,  "cul))able  ani- 
mus," or  </ros(i  ncfjlif/cncc,  which  is  alwaN-  lield  te  be 
the  ecpiivalent  of  malice  or  willful  and,  wanton  inji-ry. 

On  the  theory  of  the  case  of  the  ITinted  States  as 
ori'iinally  presented  at  Geneva,  l)efore  the  withdrawal 
of  their  unli([uidated  and  unestimated  national  claims, 
and  on  the  theory  of  their  ri<i,hr  to  recover  them  with- 
out presentinjH"  any  acc(»unt  of  them,  th<^  rule  of  dani- 
ao'es  as  there  urji'ed  was  the  lojj^'ical  and  correct  one, 
although  not  alh»\ved  then,  and  never  allowed  in  the 
history  of  the  Avorld  before  or  siiu-e,  as  l)etwef  n  nation 
and  nation. 

Let  us  see.     That  case  was  sid  f/enrri.s. 


DAMAGES PUNITORY,    ETC. 

The  riiited  States,  in  pivseiitinii'  the  natioiiMl  claiins 
sul(S('(HU'Utly  kiH»wii  as  "iiidiivct  claims"  willioiit  osti- 
iiiiitcs,  as  if  •i'oiii'i'  to  a  jury  on  a  caso  inv(tlvin<i'  Avillt'ul 
iiinl  wanton  tort,  not  n'(|ninn_ii'  tlie  proof  of"  special 
(l;iiii;i,u('s,  ])rocee(kMl  to  ask  the  'rri))unal  of  Arbitration 
"to  estimate  tlie  amount  which  ou^ht  to  l)o  i)ai(l  for 
tlic  transfer  of  the  American  connnercial  mai'ine  to  the 
IJrirish  fla<4'."    (Papers,  etc.,  Vol.  I,  [).  187,  top.) 

On  the  same  theory  they  ])resente»l  their  claim  for 
"tlic  prolonii'ation  of  the  ^var  and  the  addition  of  a 
lai'iic  sum  to  the  cost  of  the  war  and  the  su})])ressioii 
iif  tlic  rebellion,"  and  so  on,     (Id.,  ]).  185,  bottom.) 

Tlicy  did  present,  however,  as  to  claims  for  actual 
Idsscs  of  <'itizens  of  the  United  States,  specific  claims 
(if  li(|uidated  amount,  and  did  not  (islc,<is  to  them,  for 
till'  (ijipl'ddlon  of  anil  rule  of  dunni<)t't^  of  a  jntnitorij  or 
ri' .i/rfire  character  .such  as  are  claimed  lin-e. 

They  rested  their  claim  for  indirect  dama<4es  of  an 
uiK'stimate<l  character  ,/or  the  X<dion,  upon  the  theory, 
-ustnined,  as  they  claiuied  t<-»  have  demonstrated  by 
ilif  evidence,  that  tlie  acts  of  the  Confederate  cruisers 
wcic  direet  acts  of  (ireat  Britain  of  a  hostile  charac- 
tci',  ;iud  to  sustain  that  ])osition  by  the  record,  inter 
alia,  they  (pioted  Mr  (Jobden  and  otners  throughout 
tlu'ii-  case  to  that  efli'ect.  To  illusti-ate  by  one  instance 
(if  ninny,  to  sustain  the  cliarg'e  of  cul])ability  and  hos- 
tility, and  then'fore  what  woidd  be  called  as  l)etween 
iiiili\iduals,  willful  and  malicious  tort,  th<'\  (pmted 
t.oni  the  speech  of  3Ir.  ( 'obden  in  the  House  of  Com- 
ii!(ins,  as  follows: 

Voi;  have  been  carrying  on  hostilities  from  tlieso  shores 
ajjaiiist  the  people  of  the  Unitcfl  States,  and  have  been 
iiillictiiig  an  amount  of  damage  on  that  country  greater  than 
would  be  produced  by  many  ordinary  wars,  etc.    i^Uh,  p.  lov 

middle.) 

The  facts  of  record,  unhappily,  seemed  to  the  coun- 
i^ol  I  if  the  United  States,  such,  as  to  recpiire  them  to 


127 


128 


DAMAGES PUNITORY,    ETC. 


■v% 


m 


urge  the  rule  of  dainag'ef<  troni  which  the  liritish  arou- 
inent  here  quotes;  as,  for  instance,  they  state  of  the 
acts  of  Great  liritain  that  "her  acts  of  actual  or  con- 
structive complicity  with  the  Confederates  gave  to 
the  United  States  the  right  of  war  against  lit?  ay  in 
similar  circumstances  she  asserted  againri  r'v,,  .Nt.  *^her- 
lands."     (Id.,  vol.  3,  218.) 

And  again:  "No  such  case  on  so  large  a  scale  has 
ever  occurred  except  in  the  controversy  between 
Great  Britain  and  France  in  1776,  and  then  Great 
Britain  declared  war."     (Id.,  p.  219.) 

The  British  counter  case  truthfully  says,  in  refer- 
ring to  the  American  claims  of  this  description; 
"Claims  like  tlie  present  have  rarely  been  made,  and, 
as  the  British  Government  thinks,  never  conceded  ov 
recognized."     (Id.,  p.  2 ID.) 

Such  national  claims,  or  so-called  indirect  clainii-i, 
however,  were,  as  has  been  seen,  })ractically  withdrawn 
by  the  United  States  on  the  intimation  that  Great 
Britain  })roposed  to  withdraw  from  the  arbitration 

To  conclude  this  reference  to  a  most  regretta  .'p 
part  of  that  controversy,  made  necessary  owin<r  tn 
the  citation  in  the  ()j)posing  argument  here  of  tlie 
American  position  at  Geneva,  on  the  subject  of  dam- 
ages, the  opening  stiitement  of  the  British  case  before 
that  tribunal  is  cited,  where  it  s])eaks  of  the  Ameri- 
can case  as  one  which  "imputes  to  the  British  Gov- 
ernment hostile  motives."  and  states  tliat  "no  renly 
to  it  whatever  will  be  ottered  in  the  counter  c  ■  '3." 
It  goes  on  to  say  that  the  "British  Governme;;:  f-.-- 
tinctly  refuses  to  enter  upon  the  discussion  of  tSu 
charges."    (Id.,  v<d.  2,  p.  203.) 

Now,  it  is  clearly  ap])arent  tliat  the  measure  ot 
damages  urged  at  (tciovj'  ^rid  nfitvence  to  this  fea- 
ture of  that  case  which  was  elirui  u  ed  by  the  arbi- 
trators and  by  the  consent  of  ^lie  United  States. 

It  is  also  apparent  in  tluMvhole  record  of  the  Gen- 
eva Arbitration  that  so  far  as  claims  for  injuries  to 


]\  !ias 

■.-,  (-reii 

«..'  hy  1 

'  .>n  f't'  t 

■  '' '  ,:J,'i'i 
1)('  iKistf 
rcpcittec 

lIKlttf'V  ( 

Aw  lins 
I'liited 

*  Mxcltul 
kociiiiii;  o 
rifiini  oil  1 
sriziiri's,  J) 

llilVl;  lll'CIl 

1ms  lii'iMi  a 
Aiiu'iican 

OllM'l'VLT  ; 


^W^BPPHF 


DAMAGES PUNITORY,    ETC. 


129 


ritisli  aro'ii- 
itate  (>f  the 
ual  or  con- 
es gave  to 
t;  )i<r"  a:^  in 


a  scale  has 
J  between 
tlien  Great 

's,  in  refer- 
lescription; 
made,  and, 
onceded  or 

ect  claims, 
withdraAvn 
that  Great 
titration 
regTGtta  V 
Y  owiiiir  t(i 
)eru  of  the 
;ct  of  (laiii- 
case  before 
the  Aineri- 
ritish  Gov- 
"uo  reulv 
mter  (•■?." 

■111116;::    'i.- 

va  of  t!u'   ■ 

neasure  of 
to  this  feu- 
y  the  arbi- 
^tates. 
»f  the  Gen- 
iniuries  to 


v*i' 


kj 


citizens  ;ire  concerned  the  rule  as  to  aggravation  of 
(liiniages  was  not  even  suggested.  That  rule  had  no 
more  to  d(^  with  those  cases  there  than  it  has  to  do 
with  the  cases  here. 

In  this  case  the  United  States  asserted  jurisdiction 
over  it  i»iece  of  territory,  and  extended  their  munici- 
pal laws  over  it.      In   ])ursuance   of  the  exercise  of 
that  jurisdie^ion  and  in  th(^  execution  of  th<»se  laws  the 
(i(i\trnmeiit  did  noi  discriminate  against  British  sub- 
jects m-  the  subjects  of  any  other  nation  :  but  the  great- 
est in  number  to  suffer,  and  the  greatest  sufferers  from 
its  action  were  those  ])ers()ns  wiu*  were  under  the  ])ro- 
tection  of  the  United  States  and  were  their  (»wn  citi- 
zens *    Tile  incidental  and  ('(tmparatively  insigniiicant 
injury  to  British  subjects  in  this  assertion  of  a  right 
(if  soNcreignty  in  resjiect  of  the  seals  in  Bering  Sea 
can  hanlly  be  characterized  as  "wanton"  under  such 
I'ii'eaiustances. 
]\  has  not  been  considered  a  wanton  and  offensive  act 
■  (-reat   Britain,  when  by  international  negotiation 
'  '  i)y  treaty,  that  Government  has  treated  the  (jues- 
in  vf  the  jurisdiction  of  the  United  States,  as  one  of 
h'   .^rave  doubt  that  all  other  considerations  should 
lie  [Kistpoiied  until  it  corJd  be  decided;  and  when  by 
repeated  conventions,    .reating  on  the  subject,  as  a 
inattor  of  right  or  wrong,  irrespective  of  jurisdiction, 
^he  has  admitted  the  rectitude  of  the  ]iosition  of  the 
I  iiited  States   as  to    })reventiiig  pelagic  sealing  in 


"  rixclnding  the  fleets  of  American  citizens  who  obeyed  the  laws  by 
Ict'iiiiii^  out  of  tliii  sealiufi  grounds,  mid  were  tlms  deprived  of  all 
ntiini  on  their  inveHtiiient  in  tlie  sealing  business,  the  nin])  of  actual 
seizures,  ))ut  in  evidence  by  Great  Britain,  shows  a  large  majority  to 
liiivt;  lii'cn  of  American  vessels,  who  risked  the  jicnalty  of  the  law.  It 
lias  lift'ii  iissorted  that  the  seal  poachers  in  the  Knssian  as  well  as  iu  the 
Atiiericun  seas  were  largely  Americans,  and  Kipling  tcstifles  as  an 
observur : 

"  English  they  be  and  Japauee 

That  hang  on  the  Hrowu  Bear's  liank; 

And  some  be  Scot,  but  the  most,  God  wot, 

And  the  biggest  thieves  be  Yank.'' 

n   S 9 


130  DAMAGES PUNITOKY,    ETC. 

Berin<>'  Sen  jukI  has  joined  with  that  Government  in  | 
the  effort  to  prevent  it. 

Hut  a])art  even  from  tlie  question  of  what  may  .lel 
alle<l  abstract  moral  ri<>ht,  wliieh    exehides   in  its 
iffirmation  tlie  idea  of  want<mness,  in  respect  of  the 
charge  of  wantonness  and  evil  intent  to  injure  sub- 
jects of  Great  Britain,  and  in  res})ect  of  the  charge  of 
affronting-  the  flag-  and  of  invading-  the  deck  under  it, 
these  cases  are  in  ])recision  at  every  point,  in  counter- 
part of  the  case  of  Thr  Washinf/toif,  ai)pearing-  in  the  | 
proceedings  of  tlie  Mixed  Commissi(m  under  the  Con- 
vention of  1S53.     There  was  the  assertion  by  G''e;;tl 
Britain   of  exclusive  jurisdiction   over   the  Bay  of 
Fundy,  Avhich  is  and  was  held  to  be  a  })art  of  the  hio'h| 
seas.     There  a  British  (;ruiser   seized   an  American 
ship,  of  American  registry,  and  flying-  the  American 
flag,  more  than  10  miles  from  any  coast;  there  the 
American  shij)  was  taken  before  an  admiralty  court 
and  cimdenmed,  and  by  these  acts  lost  to  her  owner. 
But  there,  instead  of  a  board  of  arbitrati(m,  a  British 
umpire  decided  against  Great  Britain.      There  was 
no  charge  of  wantonness  or  malice  on  the  part  of  the 
United  States,  but  it  was  treated  as  the  plain,  even- 
day  case  of  an  act  connnitted  under  claim  or  cohnl 
of  right — failing  of  sanction  by  judicial  judgment— 
and  was  then  treated  as  a  simple  tort. 

In  these  conditions  it  is  not  seen  how  the  illustration | 
cited  against  the  United  States  from  May^ne  applies, 
where  he  savs: 


If  any  other  rule  existed  [the  rnle  as  to  punitory  damages  in 
circumstances  of  aggravation]  a  man  of  large  fortune  might 
by  a  certain  outlay  purchase  the  right  of  beinga  pxiblic  tor- 
mentor. He  might  copy  the  example  of  the  young  Roman  I 
noble  mentioned  by  Gibbon  who  used  to  run  along  tit'  Foriiiii| 
striiiing  everyone  he  met  upon  the  cheek,  while  a  slave  fol 
lowed  with  a  purse  making  a  legal  tender  of  the  statutory | 
shilling.    (Brit.  Argument,  p.  21.) 


DAMAGES — PUNITORY,    ETC. 


131 


Tlic  rule  ill  tlii.s  case  is,  as  the  same  author  states     Wood's 

I  I'         1  1-        •     1 11     •    1  Mayne    on 

it.  as  ot  a  case  oi  only    'tancied    rio'lits,  thus:  Damagesjist 

Am. Ed., from 
III  jieiieral,  however,  injur:es  to  property,  where  uiiaccom-  3rd.Eug.Ed., 
Ipaiiied  by  malice,  and  especially  where  they  take  place  under      P-  ^''• 
U  fdHcird  right,  are  only  vissitecl  with  damages  proportionate 
[to  the  ii(!taal  pecuniary  loss  sustained. 

Neither  is  it  seen  how  the  rules  ajiply,  cited  tVoiu 

I  Sutherland  on  Damages,  that  the  motive  with  which 

;i  wronji'  is  d«me  attects  the  rule  by  which  compensa- 

tidii  is  measured,  or,  as  the  same  author  is  quoted,  that 

'Where  there  is  a  fraud  or  other  intentional  Avrong 

I  there  is  not  the  same  strictness  to  exclude  uncertain  and 

ivnote  damages,"  have  anything  to  do  with  this  case. 

The  rule  actually  a})))lying  here  is  stated  by  that 

liiiith(ir  as  follows  (Vol.  I,  173): 

Tlu^  vahie  of  the  property  constitutes  the  measure  or  an 
I  element  of  damages  in  a  great  variety  of  cases,  both  of  tort 
(1  contract;  and  where  there  are  no  such  .aggravations  as 
Icall  lor  or  Justify  exemplary  damages  in  actions  in  which 
such  damages  are  recoverable,  the  value  is  ascertained  and 
liulopted  as  the  measure  of  compensation  for  being  deprived 
Inf  the  property  the  same  in  actions  of  tort  as  in  actions  upon 
Icoiitract.  In  both  cases  the  value  is  the  legal  and  tixed 
jiiieasure  of  damages,  and  not  (Uscretiondry  with  the  jury. 

The  same  ruleAvill  be  found  in  Sedgwick;  and  his 
stiiteineiit,  as  quoted  in  the  opposing  brief,  as  to  cer- 
Itaiiity  in  the  allowance  of  profits,  'Svheii  not  excluded 
|ii>  unnatural  or  remote,  being  wholly  a  question  of 
lie  certainty  of  proof,"  refers,  of  course,  to  that  "cer- 
Itiiiiity,"  in  the  legal  sense  of  the  term,  as  defined  by 
Itlie  cases  which  have  been  alre^»dy  exhaustively 
It'Xiunined. 

Hut  past  prolits  are  in  no  case  to  be  taken  as  a  guide  to 
pvliat  may  afterwards  be  made.  (Masterton  v.  Mt.  Vernon, 
|1S  X.  v.,  391.) 

The  citations  from  Sedgwick  and  Sutherland,  of 

|«iiicli  the  case  of  Allison  v.  Chandler  (11  Mich.,  542) 

taken  as  the  text,  a))})earing  on  pages  28,  29,  and 


132 


DAMAGES PUNITORY,    ETC. 


30  of  tlie  Briti.sli  nr<i;-unieiit,  are  another  instanpc  nfl 
extremely  i)iaj)[)ro))riate  a})})lioation. 

Ill  the  case  of  AUisoii  v.  ChaiidU^',  if  exaiuiiud, 
will  be  found  the  same  broad  distinction,  as  in  tlie| 
text  writers  cited. 

Thus  in  tliat  case  itself: 

If  a  trespass  was  committed  while  the  deCendant  was  at'tingl 
ill  good  faith  and  under  au  lioiiest  belief  that  he  had  a  legall 
right  to  do  the  act,  the  plaiiititf  is  entitled  to  recover  oiil.v| 
actual  damages  and  not  damages  of  a  punitory  character. 

The  acti<m  was  one  of  trespass  to  realty,  and  tliel 
acts  of  the  defendant  were  of  a  })eculiarly  flagrant  ainll 
outrageous  nature.  xVllison  had  an  old-estal)lisli('(l[ 
business,  and  Chandler,  wanting  the  property,  witlioiitl 
any  color  of  right  whatever,  as  was  found,  practioallyl 
tore  down  the  building  over  his  head  and  ruined  lii;>| 
stock  in  trade. 

It  is  usually  spoken  of  through  the  books  aiuii 
re})orts  of  cases  as  the  leading  example  of  a  "willful, 
wanton,  reckless,  and  malicious  trespass.*' 

And  so  the  Michigan  cases  follow  it,  but  distingiiisli 
cases  like  the  one  here  considered.  (Hyatt  v.  Adniiis, 
16  Mich.,  180;  Batterson  v.  Chicago,  49  Mich,  184;| 
Kreiter  v.  Nichols,  2.S  Mich.,  491) ) 

And,  furthermore,  it  is  held  in  the  supreme  courtl 
of  ]\Iichigan — where  xVllison  v.  Chandler  still  lioldsl 
its  place — that  the  "wrong  must  be  one  wilfully  doiiel 
the  ])laintiif,  and  not  a  wrong  done  without  refereiioel 
to  him."  (Detroit  r.  Mc Arthur,  1(\  Mich.,  447.  Aiulf 
see  28  Mich.,  sujmi;  Gansley  v.  Perkins,  30  Micli.,1 
492;  Tenhoi)en  v.  Walker,  96  Mich.,  236.) 

The  case  is  like  that  of  Temperton  -r.  Russel— I 
malicious  injury  to  trade— (1893,  I  Q.  B.,  715),  or 
if  apj)lied  to  marine  torts,  would  lie  like  the  cases  otl 
malicious  arrest  of  a  ship,  if  it  was  the  "result  of  badl 
faith  or  crassa  negligence."  (See  cases  cited,  L.  K  [ 
Dig.,  1891-1895,  column  803.) 


LEGITIMA^ 


EXTRAVAGANT   CLAIMS. 


133 


The  ([UotatioiiH  from  Potliier,  Laurent,  and  from 
Ilciiiolombe  require  but  two  comment.s: 

1)  Tliese  are  not  cases  of  fraud;  and 

2)  It  need  hardly  be  said  that  ilie  rule  of  dam- 
tines  under  the  Civil  Law  difl'ers  from  that  of  the 
nminioii  law,  and  has  no  a})j)lic'ation  here;  neither 
|li;is;uiy  code  which  has  the  Civil  Law  for  a  parent. 

LSGiriMATE  COMPENSATION  AND  HEREIN  OF 
EXTRAVAGANT  CLAIMS. 

Ik'icafter,  under  the  ])ro|)er  heads,  the  testimony 

lit  the  several  owners  of  the  respective  vessels  and  the 
■otlicr  evidence  will  be  analyzed,  so  that  what  ma^'  be 
Ik'cincd  the  hig-hest  limit  of  fair  valuations  and  fair 
■{niiipensation  for  injuries  may  be  arrived  at  froui  the 
Iti'stiiHony. 

TIu'  tendency  to  preposterous  exag-geration  by 
iciiiiitiiiuts  ag-ainst  nations,  and  es[)ecially  under  Claims 
ICdiiuuissions,  has  been  universally  observed,  and  is 
liuitlutritativelv  set  down  in  the  books  as  a  matter  to 

W  treated  as  a  general  rule  in  arrivinf^  at  valuations. 

Tuder  the  British  and  American  (ylaims  Conven- 

iridii  of  1S71,  55,()()()  printed  ])ag'es  (74  octavo  vol- 

liuiu's  ot'  (SCO  pages  each)  of  testimony  were  taken,  and 

Itlif  iingreg-ate  of  claims  presented  by  British  sul)jects 

iijiMiiist  the  United  States  was  896,00(),()0().  'The 
jtiitjil  awards  of  the  (Jonnnission  on  those  claims  ag-gre- 
Liitcfl  si^y29,(Sll).     The  claim  of  American  citizens 

pivsciited  to  that  Connnission  ag'ainst  Great  Britain 
|iiooi'(.u;it(j(|  Sl,0()(),()00,  of  which  none  were  allowed. 

(Hiit.  Agent's  Re}).,  ]).  5,  Apj).   164;    and  see  Am. 

lAuviit's  ilep.,  vol.  (),  Papers  Treaty  of  Wash.,  pp.  4,8.) 

ruder  the  Convention  of  P\4)ruary  12,  1871,  be- 

|t\\('('n  the  United  States  and  S])ain,  upwards  of  $30,- 

'i"0,0()()  of  claims  were  presented   and    considered, 

iiiid  of  this  amount  there  was  allowed  somethings  over 
pi, 0(10,000.     (Am.  Rep.,  "Opinions  and  Decisions," 

ApiH'udix.) 


m 


134 


EXTRAVAGANT    CLAIMS. 


liffoiv  tlie  Anu'ricMii  and  Bi-itisli  Coinniission  of 
18"),'}  cliiinis  }i<i'<iTe<if}itin<i"  some  niilHons  of  dollins 
were  ])res('iite(l  by  esicli  country  ii<>ainst  tlie  otlicr, 
and  tlie  total  award  on  tliein  was,  on  account  of 
liritisli  subjects,  8277,1 02. S(S,  and  on  account  nf 
American  citizens,  sa2!), 734.1(1.  (Am.  Aoent's  \\c 
])(U't — Introduction  and  Reca])itulation.) 

Tnder  the  (Maims  C"on\ention  l)etween  tlie  Unitcil 

States  and  Mexico  of  July  4,  IHOS,  the  claims  pre 

sented   a<>'o-re<>-ated   847(»,l'2i;,()18.13,   and   the  Com 

missioners allowed  on  theui  the  sum  of  •S3,!>7r),128.71l.* 

Brit.andFor.  '    In  April,  1.S71,    the    Montijo,   an    American  ship, 

pers,  1874- was  ca])tnred  and  detained  hy  the  United  States  df 

75,yoi.  66,Q,,i,,„^|)j.^      ^p1j(.  United  States  i)referred  a  claim  tor 

damages. 

The  matter  was  referred  to  arbitrators.  The  amount 
of  the  claim  presented  was  !iS{)4,()0().  The  arbitrators 
disagreed,  and  the  matter  was  then  referred  to  the 
British  minister  as  umpire.  The  report  on  the  (iiics- 
tion  of  comjiensation  made  by  the  American  arbitrator 
was  artirmed  by  the  umpire,  cutting  the  com})ensati(m 
down  to  833,06(). 

On  the  claims  for  British  ships  destroyed  in  the 
Seine  by  Prussia,  Great  liritain  referred  the  \i\\m- 
tions  to  the  lords  of  the  ])rivy  council  of  trade  tor 
investigation  and  audit.  The  result  was  reported  by 
the  l)oard  of  trade,  who,  after  investigation,  said  of 
the  claims  preferred  by  the  respective  owners  for  the 
losses  of  their  vessels  that  they  were  "far  in  excels 
of  the  most  extravagant  valuation  that  could  be  i)Ut 
upon  them." 


*Iii  1880  a  British  subject  iu  Greece  was  injured,  liis  family  'toaten, 
and  "liis  whole  property  destroyed."'  His  claim  on  the  Greek  Govern- 
ment, which  Great  iJritain  took  up,  waa  for  £21,295  1b.  4d.  Great 
Britain's  method  of  intervention  at  first  was  by  making  reju-isals. 
Greece  protested,  and  Russia  remonstrated.  Throuf^h  the  mediation  ot 
France  the  controversy  was  adjusted  by  referring  it  to  commissioners, 
who,  oi>  full  iuv*'stigation  and  appraisement  of  compensation,  awarded 
the  British  subject  £150.     (Baker's  Halh?k,  Vol.  I,  p.  472,  note.) 


And  again: 
jilisurd  in  the 

Tlic  Kegisti 
;i  report,  in  w 

111  tlie  presen 
tlnit  I  sliould  1) 

I  follow  in  court, 
when  lie  puts  ft 

I  (lone  iu  tlie.se  v; 

it  is  of  int( 
lilt  upon  shi] 
trade  and  A( 


Skill 


Alii'i" 

Aim 

.liiiic  'I'iiiilall. 
Jessaniiiio  ... 

Mcl.iireii 

Sally  (iiile  ... 
S\  Ipli 


Tlie  aggr( 
pounds;  the 
rciiistrar  of  t! 

A  similar 
on  the  Ame 
British  case 
they  say: 

It  will  at  on 
with  tlie  prac 
impossible  to 
of  shipowners 
ffliicli  they  ar 
habit  of  foun 
market  price 


EXTRAVAGANT    CLAIMS. 


135 


And  iijiiiin:  "Those  estimates  are  extrava<iant  and 
;iiism<l  in  tlie  extreme." 

Tlu!  Hejiistrar  of  the  Court  of  Admiralty  also  made 
111  r{|i(»rt,  in  which  he  .said: 

111  tlie  present  case  the  claims  preferred  are  so  outrageous 
tli;it  1  should  be  inclined  to  adopt  the  rule  which  I  always 

I  liillow  in  court,  namely,  never  to  allow  the  claimant  his  costs 
when  lie  puts  forward  a  very  extravagant  (tlaim,  as  has  been 

I  (lone  in  these  cases. 

It  is  of  interest  to  note  the  comparative  valuations 
lilt  u|)on  ships  by  their  owners,  and  by  the  ]kmrd  of 
Tnidc  iuid  Admiralty  for  compen.sation,  as  follows: 


Ships. 


Age. 


Alice 

Ann 

.Iiiiic  'riniliill 
.lessiiniiiio  .. 
McI.iirtMi  ... 
Sallv  (liilc. 
Syli'ih 


T0U8. 


Owners' 
clniin. 


20 
10 
21 
16 
19 
11 
53 


160 
147 
15!) 
214 
178 
153 
138 


£ 

2,400 
1,824 
1,800 
2,  500 
2,000 
2,800 
2, 000 


Report  of 

iiinimut  to 

be  ])fti(l  for 

ship. 


700Brit.    and 


1,000 
700 
900 

1,100 
950 
550 


For.  State 
Papers, 
Vol.  61,  pp. 
595-697. 


15, 324 


5,900 


The  aj.'-jrrefT'ate  of  claims  presented  was  20,270 
poiiiids;  the  total  allowed  on  the  able  report  of  the 
icjiistrar  of  the  Court  of  Admiralty  was  0,899  pounds. 

A  similar  report  by  the  same  authorities  was  made 
(111  the  American  claims  and  filed  as  a  part  of  the 
British  case  before  the  arbitrators  at  Geneva^  wherein 
tiicy  say: 

It  will  at  once  be  admitted  by  those  who  are  at  all  familiar  Vol.2, Papers 
witii  the  practice  of  the  courts  in  maritime  cases  that  it  is  relating  to 
impossible  to  place  much  reliance  on  the  opinion  or  evidence 
of  shipowners  or  merchants  as  to  the  value  of  property 
wliicii  they  are  seeking  to  recover.  Shipowners  are  in  the 
habit  of  f{9undiug  their  estimate  not  on  what  would  be  the 
raaiki't  price  of  the  vessel  at  the  time  of  her  loss,  but  on 


Treaty  of 
Washing- 
ton, p.  23. 


136  EXTRAVAGANT    CLAIMS. 

tlie  orifiiiial  coat  price,  and  often  take  into  account  tlie 
amounts  wliicli  they  have  expended  at  ditt'erent  times  witli 
out  makinji'  any  proper  deducitions  for  the  wear  and  tear  and 
damage  wiiich  has  been  sustained.  Merchants  are  inclined 
to  estimate  the  value  of  their  goods  by  tlie  profits  wliicli 
they  had  hoped  to  realize,  without  making  any  allowance 
for  the  risk  of  the  market  price  falling  or  other  contingencies 
on  which  those  profits  so  often  depend. 

Chief  .rustiee  Coekburn,  in  liis  opinion  on  the 
claims,  says: 

The  true  character  of  these  (iiaims  will  be  seen  by  compar- 
ing the  amount  of  the  demands  now  made  for  the  prospective 
earnings  of  the  whalers  with  the  original  list  of  claims  for- 
warded by  Mr.  Seward  to  Mr.  Adams  in  18(»(»  and  communi- 
cated by  the  latter  to  the  British  (iovernment.  It  thus 
api)ears  that  these  claims  have,  without  any  assignable  rea- 
son, increased  to  su(!h  an  extent  that  they  are  now  some- 
times double,  sometimes  treble,  and  sometimes  even  more 
than  five  times  what  they  were  in  the  original  list. 

The  following  table  exhibits  socie  of  the  more  striking 
cases. 

*  «  «  «  * 

^lany  other  similar  instances  of  extraordinary  and  arbi- 
trary increase  might  be  cited,  but  the  above  will  suffice  to 
show  (what,  indeed,  a  mere  comparison  of  the  claims  them- 
selves with  the  value  and  tonnage  of  the  vessels  but  too 
clearly  proves)  that  these  demands  are  of  a  most  extortionate 
character. 


Vol.  4.,  Pa-     I  believe  that  the  estimate  of  $100  per  ton  for  ship  and 
^w'^'r'^*"*^  outfit  (whaling  ship),  proposed  in  the  liritish  Reports,  is  such 
53g_t^i Z^^' as  would  be  accepted  as  adecjuate  by  persons  acquainted 
with  the  character  and  value  of  whaling  vessels. 

Usino-  these  few  of  many  instances  for  illnstratiou, 
attention  is  called  to  the  evolution  of  the  claims  here 
from  the  time  they  first  ap})eared  and  were  first  pre- 
sented by  Great  Britain  at  Paris  until  they  appear 
again  in  tabulated  form  in  the  argument  here.  This 
■  table  does  not  include  the  costs  in  the  Sayward  case 
or  "Additional  claims,''  but  simply  the  claims  by  the 
owners  of  the  ships,  showing  the  same  description  of 


EXTRAVAGANT    CLAIMS. 


137 


iljiiiiis  as  they  have  seen  the  li<^lit  at  tliree  ditt'ereiit 

times. 


Cliiiiii  iiH  ('laiiii  nH  Claim  ax       "Intorest 

|iri'8eiiteil  at   preBentcil  at  now  to  be 

Paria.       '     Vlcturiii.     !    prosvnted.       aililed." 


VcMHels. 


CaiolHlM $1'9,  31||.  01 

Tlioi'iitDii 33,  HI".  ().5 

(inuiinl 29,769.71 

KaviHiiito 7,000.00 

W.I'.  Say  ward  31,055.00 

(Iraco 40, 142.57 

AiiiiM  llfck 30,  S03.  04 

liiilphiii 43,S3(».50 

Alfifil  AdauLs 20, 433. 00 

Ada 28.528.00 

Tiiiiiii|.li  (little) 10,250.00 

Jiiaiiita  14.  ({95.  00 

I'atlilindiT,  1889 2(5,  7(i5.  00 

Triiiiiiiili  (big) 19,674.(10 

Ulaek  i  )iaiii(nid,  18K9 17,  185.  00 

i.ilv 17,176.00 

Ariel 9,498.00 

iiatf 11,210.00 

.Minnie 16,460.00 

I'atlitinder,  1890 2,000.00 


135,  0(K).  00 
37,  000.  00 

34,  000. 00 
7,  000.  00 

35,  000.  00 
52,  000. 00 
42,  000.  00 
55,  01 H).  00 
25,  000.  00 
42,  (KH).  00 

11,  (MM).  00 
18,  000.  00 
30,  000.  00 
25,  000.  00 
23,  (MM).  (H» 
22,  000. 00 

12,  (MM).  00 
14,01M).0() 
22,  (M)0.  00 

2,  (MM).  00 


$38,  089.  25 
42,163.04 
45,570.  10  ; 

6,  202.  00 
47,  984.  96  I 
64,498.25 
.54,309.08  j 
08,897.71  I 
20, 746. 00  : 
61,003.07  i 

5,  325. 50  i 
32,  481. 00  ' 

:  34, 622. 00  ; 

40,  950.  00  I 
41,901.00  ! 
34, 574. 00  i 
20,  (Mil.  00  I 
22,384.00  ; 
40, 407.  00  t 
3,  7(M).0O  ! 


hi  observing-  this  table  and  tlie  ainonnts  in  the 
(dliiinu  of  chiiins  as  pre.sented  at  Victoria,  it  sliould 
V'  rciiiarkt'd  in  passiufj:-  that  it'  the  g-eneral  phin  of 
[iivsciitation  as  pioneered  by  the  alleged  owner,  Mun- 
>it',  ill  the  long-  hearing  in  tlie  case  of  the  CurolcNa,  luV' 
iiid  miscarried,  within  the  observation  of  those  who 
were  to  come  after,  no  one  wonld  venture  to  estimate 
liuw   far  the  prejiosterons  exaggeration  wonld  have 

l'-([uipmentfor  business  in  general,  for  fishing  voy- 
iiji'i^s  on  the  coast  for  other  seasons,  for  supplies  for 
ittlicr  ships,  stocks  of  goods  for  Indian  trading  stores, 
and  so  on,  might  have  been  added  to  the  enormous 
iuiii Hints  that  are  now  shown;  and,  as  in  the  case  of 
the  Carolena,  vouchers  might  have  been  presented  of 
tlic  most  orderly,  most  regular,  and  coiTect  kind  to 
("iivince  the  Commissioners  that  all  these  were  used 


138 


DAMAUES- 


•1»EU80NAL    CLAIMS. 


in  }i  ])i-<>lon<i(Ml  season  of  two  niontlis  in  licrinj*'  Scm, 
for  wiiicli  till'  rnit<-(l  States  sliouid  i)ay.  As  it  is. 
the  results  of  tliat  original  plan,  in  tlie  amounts  df 
those  laltorionsly  honest  \<»nt'hers  for  supplies  iiiid 
e(|ui|»nients,  are  n(tt  in  the  case,  and  even  the  Hrst 
fruits  of  it,  so  carefully  jtresei'ved  and  so  faitlitttilv 
sworn  to  1)N'  Munsie,  the  Ctirolottt  \ouchei"s,  arc  iiut 
brou^iht  forward,  or  their  funounts  longer  included  in 
the  alK»ve  "\  aluaiious." 

The  ( 'oinniissioners  have  seen  the  <  unants  sit 
A'ictoria  and  have  ohserxcd  their  uietho  '"  prepai'- 
iufi'  and  presentin^^'  their  evidence.  As  <>  .  lass,  tlicv 
were  certainly  no  better  than  those  referred  to  in  the 
citations  heretohtre  ([uoted,  as  beinj^'  unreliable  assess- 
ors of  their  own  values  and  dania<:es. 

PERSONAL     DAMAGES     FOR     FALSE     IMPRISONMENT 
AND    PAIN    AND    SUFFERING. 

As  to  these,  a  table  is  subjnitte<l*  showing"  tlieiv 
growth    in    nmount.     The   testimony  in    support  of 
them  is  hereinafter  analyzed  undL^r  the  proper  heads. 
The  Margotich  story,  which  se>'ms  still  to  l)e  given 
credence  in  the  British  ar<>ument.  is  a  storv  of  hard- 
shij),  but  it  is  not  believ  d,  after  the  investig-atioii  at 
Victoria,  that  the  Conunissioners  w  ill  give  it  any  credit, 
p.  59,  sched-      The  "sutferings  and  losses,  na-s  ig-ating- four  vessels 
ish^cMms*^'^^'"  Unalaska  to  Sitka,"  of  Cai»'.ain  Warren,  John 
at  Paris.     Keillv,  Captain   Ferey,  A.  B.  Lidng',   L(niis   Olseii, 
]\Iichael    Keefe,  and  Ca])tain  Pe  it,  of  the  Warreii- 
Coo})er  fleet,  mig-ht  possibly  be  coxisidered  irresi»et'- 
tive  of  the  actual  American  ownership  of  the  vessels 
on  which  they  sailed,  with  the  exce])tion  of  Warren 
and  Laing',  who  had  full  knowledge  that  the  national 
character  of  the  shi})s  on  which  they  sailed  was  not  Brit- 
ish, but  American.     In  an}-  case,  the  amounts  charged 
for  the  hard8hii)s  all  appear  by  the  table  presented. 

*  Infra,  p.  335. 


What  the 

;i|i|)c;ir  at  th 

;it  tliat  heari 

mill  Keefe  v 

Al;i>ka  at  a 

tin-  aiithoriti 

tlicir  service 

it  did  ap] 

uri'c  ort'  on 

iiiiiiH'd,  who 

Ciijitain  Wa 

Among  til 

Mi'c  (luttorn 

;ill(tf  theO/, 

Marg<tti(di  }i 

related  by 

(111  cross-ex 

jail,  not  as  i 

and  remaii 

ciiiploynien 

claim  for  w 

word  of  te? 

witness    ju 

suii'ered. 

The  testi 
Oiilivie  vh 
argue  the  ( 
Munsie  clu 
cliarge  aga 
The  ])er( 
wliicdi  hav( 
capture  at 
ages,  whic 
rule  of  dai 
It  appe; 
notably  ur 
sonal  clain 


I-AMA(Ji:S- 


-"tkhsonal  claims." 


13!» 


W  liiit  tlicst'  sidVcriii^s  jind  losses  were;  did  not 
,i|i]i(;ir  jit  the  li('!iriii<i'  at  Nictoriii,  hut  it  di<l  appear 
;ir  tliiit  lieaviiij:',  for  the  lirst  time,  tliat  Warren,  IVtit, 
iiihl  Keete  were  occupied  durin^i'  their  "deteiitiou"  in 
Ahiska  at  a  very  hi^li  rate  of  couipeiisatiou,  paid  l>y 
the  iiuthoi'ities  ot"  the  l'nite<l  States  (Jc  terimieiit,  tor 
their  services  under  voluntary  contract. 

it  did  appear  that  while  Captain  Petit  and  Keete 
wci'c  (»tf'  on  a  voya<>'(^  in  tliat  ix'half,  al'  the  others 
nniiicd,  who  were  not  surt'erino-  like  thciuselves  and 
(';i|)tiiin  Warren,  had  de]tarted  for  home. 

Amonji'  the  prisoners  of  1(SS(!,  aside  from  Mar^otich, 
MIC  (Juttoi'nsen,  Moni'oe,  Norman,  ()<^livie,  and  lilack, 
;ill  of  the  Oinrnrd,  'riton/foH,  and  the  ('(ooh'tut.  Settinj^' 
Miir^-otich  aside,  the  tale  of  sutferinji'  of  these  men  is 
related  by  the  witness  Dillon,  who,  as  it  turned  out 
(111  cross-examination,  actually  I'emained  about  the 
jail,  not  as  a  prisoner,  but  as  a  deputy  of  the  sheriff, 
iiiKJ  remained  because^  he  <i'ot  better  wa<i'es  in  that 
ciiiployment  than  in  followinj^-  the  sea.  There  is  no 
cliiiin  for  wa<>'es  in  these  i)ersonal  chums,  and  not  a 
word  of  testimony  exce])t  that  of  Mar<i-oticli  and  the 
witness  just  mentioned  as  to  any  actual  dama<i"e 
Mitlered. 

The  testimony  of  Ca))tain  Uaynor  disposes  of  the 
Oiilivie  chiim,  and  it  is  not  thought  necessary  to 
iii^iie  the  (piestion  as  to  whether  the  item  which  Mr. 
Muiisie  char<>es  for  cash  lost  through  him  is  a  pro])er 
cliai'iie  aoainst  the  United  States. 

riie  ])er8onal  claims  are  of  a  character  m  any  case 
which  have  never  been  allowed  in  a  case  of  unlawful 
capture  at  sea.  They  are  chiinis  for  punitory  dam- 
a;i('s,  wliich,  as  we  have  seen,  can  not  furnish  the 
rule  of  dama<i;e8  here. 

It  appears  throuj>h  all  prior  Commissions,  and 
notably  under  the  Commission  of  1871,  that  all  per- 
sonal claims  of  masters  or  members  of  crews  of  ships 


140 


DAMAQES- 


'' PERSONAL    CLAIMS." 


for  iinprisonment,  li{ir(lslii|is,  or  otlierwise,  wero  pre- 
sented se|>;iriitely  i'roni  the  ships,  by  indivifhials,  be- 
cause a  iiiulin<>'  was  recpiirecl  oii  "eacli"  elaim,  as  in 
tliis  rase.  It  follows,  on  tliis  <:;Touiid  also,  that  no 
elaiiiis  can  be  entertained  that  are  not  scheduletl. 

It  was  the  act  of  a  (Tovernnient  under  e<»lor  of  riuht 
and  elaim  of  jurisdiction.  Althou<ih  the  j)ersoiis  on 
the  captured  vessels  were  ])ractically  imprisoned  in 
the  AlabtniKi  cases,  no  such  claims  were  even  ))reseute(l. 

The  case  ot  the  Montijo,  siipro,  was  jiarticulariv 
outrageous  as  against  the  ship  and  those  upon  her. 
In  that  case  similar  claims  were  presented  by  the 
United  States  in  behalf  of  the  officers  and  crew,  and 
this  is  what  tbe  British  minister,  acting-  as  unn)ire, 
decided  on  such  claims: 

But  the  uiidersi.i'iied,  whilst  decidiiis'  on  tlie  liability  of 
the  owners,  does  not  see  any  nece.ssity  tor  indeii!nifyh!<i 
either  .Mr.  tlohn  Schruber,  the  captain,  the  enginetr,  or  the 
petty  oiticers  and  crew  of  the  Montijo.  No  personal  injiny 
seems  to  have  been  suffered  by  any  of  th  >e  persons,  and  the 
inconvenience  they  exi)erienced  appears  to  liave  been  small. 
In  the  case  of  the  otticers  and  crew  probably  there  was  none 
at  all.  The  wa}>es  of  all  of  these  latter  have  doubtless  been 
l)aid  by  theowi'crs.  so  that  it  really  must  have  been  anuitter 
of  inditterence  to  them  whether  tliey  were  sailinji'  under  the 
orders  of  Captain  Saunders  or  of  Sefior  Her-M'a. 

As  to  Mr.  rJohn  Schruber.  the  undersigned  can  scarcely 
consider  as  a  case  of  false  imprisonment  his  retention  ou 
board  of  his  own  vessel.  That  he  was  not  a  free  man  is  true, 
and  that  he  suttered  some  inconvenience  and  posvsibly  some 
loss  of  business  by  the  act  of  which  he  complains  is  probably 
the  case. 

It  is  al.so  ])ossible  that  a  court  of  hiw  might  consider  him 
entitled  to  i)ersonal  duunxges,  but  the  undersigned  believew 
that  a  Tribunal  such  as  this  is  may  lawfully  e\erci.se  (M)nsid- 
erable  discretion  of  its  own,  and  decjde  rather  on  broad  gen- 
eral princiides  than  on  a  strict  inter])retation  of  written  law. 
Such  being  his  opinion,  he  concurs  iritJi  the  Arhitrator  of  the 
Unitt'd  States  in  striking  out  of  the  accounts  presented  by 
that  (rovernment  the  claims  for  personal  damages  of  all  tiie 
parties  concerned. 


On  the  te 

possible  tha 
iis  they  re  hi 
sciitcfl  ao-ai 
iillowcd  for 
or  without 
Whateve 
rlic  ships  o 
iilipcarino- 
the    Paris 
must  be  a 
(•nil   not   b( 
iiu-rc  state 
(liiiiiiimii    c1 
milcss  the 
tliiit  dania: 
]i('iises  can 

In  tlie  r;i 
licr  subje;-l 

ScilM'.     ■!ll/H 

ciupiloved 
1lie  clai 

tort.     {Ba 
<  >r  in  ci\ 

Si  HDi'd  (Ik 


The  Bri 
llif  ieadii 
market  dv 

Thatth 

'  The  iiuiiil 

AiLMimont  foi 


DAMAGES SEAL    SKIN    VALUES. 


141 


CLAIMS  FOR  LEQAL  SERVICES. 

On  tlic  testiuiom'  Mt  Victoria,  it  is  hardlv  tliou^lit 
])(issil)le  tliattlie.^c  t'liarf^-es  will  be  eiitertaiiuid,  in  sotar 
lis  rlu'V  relate  to  the  ])reparation  of  elaiins  to  be  })re- 
sciitcd  atvainst  the  Governnieiit,  and  ii(>Tliing'  can  be 
iill(»u-ed  for  "leiial  and  other  ex])enses,"  on  an  estimate, 
or  wit!     ai  proof  of  what  the\'  are. 

\\  liatever  cliarjics  were  ])aid  ont  for  the  tiefense  of 
rlic  ships  of  liritish  owners  in  the  courts  of  Alaska, 
!il)]i<'arin<>'  in  the  British  schedule  of  claims  before 
tlic  I'aris  Tribunal,  should  be  allowed;  but  there 
iiiii>r  !)e  a  i-ertainty  of  proof  as  to  them,  and  they 
ciiii  not  be  l■eco^('red  without  ])roof,  and  on  their 
iiH'ic  statement  ot  the  (daim,  anahtji'ous  to  the  <i(l 
(Idiiiinini  (dause  in  a  de«daration  at  common  law — 
unless  th<^  tiieory  of  the  Jh'itish  ariiument  be  correct, 
rliiit  damjuics  on  a  general  alleviation  of  le^'al  ex- 
iicnsescau  be  j'iven  because  of  matter  of  aii^ravation. 

111  the  case  of  the  claim  of  Great  IJritain  in  behalf  of 
lid  subjects  in  tiie  shi])s  destroyed  by  I'russia  in  the 
iSoiiiife,  :<i(jn<(,  the  char<i'e  for  lefj'al  services  of  lawyers 
cmpiloved  to  ])rotect  their  interests  Avas  stricken  out. 

I  lie  (daim  is  never  allowed  in  su(di  c'-^esof  marine 
t..rr.     {IJa/fhiion',  8  Wall.,  37V.) 

*  >r  in  cases  of  wron;;ful  capmie  ai  sea.  {Nticstra 
Sdioni  th'  Rcghi,  17  Wall.,  j).  31.) 


THE    VALUE    OF    SEAL   SKIXS.* 

The  Briti»li  Arpiment  cites  the  witness  Theo.  Lubbe, 
tile  h^adinp  ]nirchaser  of  seal  skins  in  the  \'ictori}i 
market  (hirra-;-  lS8t;,  1H87,  and  1889  to  this  etfect: 

riiat  the  riaarket  at  Victoria  was  ruled  by  the  London 

*  'lilt!  iiitnil)er  of  Heals  seiznd  ou  each  vessel  is  iiccurately  stated  in  the 
Arjjiiiimnt  tor  (irsat  Jiritaiu. 


142 


DAJfAGES SEAL    SKIN   VALUES. 


sales.  This  beinj^-  so,  even  if  it  be  {idinitted  that  the 
London  prices  have  anythinji'  to  do  witli  tlie  nieasuie 
of  value,  the  tendency  of  the  testimony  as  to  that 
foreign  market,  in  coi.nection  with  the  actual  siilcs 
at  Victoria  is  to  the  conclusion  that  the  Victoria 
])rices,  so  ruled,  are  still  the  tests  of  values  in  this  case. 
The  evidence  dis(d<ises,  however,  that  there  was  always 
a  market  at  Victoria,  and  that  the  following  were 
large  buyers  at  that  })lace  diu'ing  the  three  years: 

1SS6:  Theodore  Lubbe,  representing  Martin  liates, 
Jr.,  &  Co.,  of  New  York;  Alaska  Commercial  Com- 
pany; Bessinger  &  Co.;  The  Hudson  liay  Company: 
Liebes  &  Co.,  of  San  Francisco;   I.  ct  A.  lioscowitz. 

18S7:  Theodore  Lubbe,  representing  i\Iartin  Hates, 
Jr.,  &  Co.,  of  New  York;  J.  Uhlman  &  Co.,  of  New 
York;  Liebes  &  Co.,  of  San  Francisco;  Morris  i\[oss, 
purchasing  agent  at  Victoria;  J.  lk)SCowitz;  Hudson 
Bav  Coinnanv. 

1S81>:  Theodore  Lubbe,  re[)resenting  Martin  Bates 
Jr.  &  Co.,  of  New  York;  Walter  Bonis;  Jos. 
Uhlman,  of  New  York;  H.  Liebes  Si  Co.,  of  Sail 
Francisco;  ^forris  3[oss,  purchasing  agent  at  Vi(- 
toria;  I'he  Hudson  l^ay  Com])aiiy;  d.  and  A. 
Boscowitz. 

With  ^his  evidence  of  a  market  at  Victoria  and 
witli  the  dear  evidence  of  another  aiul  active  market 
so  near  as  San  Francisco,  it  does  not  yet  ap})ear  liow 
the  evidence;  of  Loiuhui  sales  could  be  com[)etent. 
The  claims  originally  set  down  in  the  schedule  })re- 
sented  at  Paris  were  in  terms  based  on  tlie  Victoria 
market,  with  the  exception  of  those  of  Mr.  Munsie, 
who  there  sets  out  the  London  ])rices.  As  t(t  tlie 
other  claims,  the  foreign  market  is  a  new  theory. 

It  is  not  necessary  to  again  state  the  measure  ot 
recovery  for  the  conversion  of  })erRonal  property. 
The  cases  heretofore  carefully  analyzed,  universally 
ludd  to  a  test,  that  would  exclude  the  London  market 


1>AMAGES — INTEREST. 


14H 


IIS  II  lueasure  of  vnlue.  Wlierevcr  ]»resente(l,  as  to 
riiii:<",  ill  cases  ot"  iiiariiie  tort  or  contract,  such  a  claim 
liiis  l)fi'n  invariably  ruled  a^'ainst.  The  time  of"  the 
iiieasiu'e  of  vahio  in  siu'li  cases  is  the  date  of  seizure. 
The  pidce  of  tlie  measure  of  value  of  cargo  is  invaria- 
lil\  the  })(;rt  of  de})arture,  if  a  market  exists  there  or, 
it' lint,  the  nearest  market. 


INTEREST. 

In  limine,  it  may  be  said  that  interest  was  never 
lu'tore  claimed  U[)on  ])ros])ective  profits,  or  upon  any- 
tliiiiu'  ;i'iven  in  lieu  of  prospecti^■e  profits.  The  only 
reason  ever  g'iven  for  the  allowanc  if  interest  at 
I'diiiinon  law,  or  by  the  Civil  law,  is,  tliiir  as  pros])ec- 
ri\('  profits  or  future  earnings  can  not  be  <i•i^•en.  iuter- 
-r  shall  be  allowed  to  represent  future  earnings,  or 
t'linire  proiits,  as  the  nearest  a})proach  to  a  just  rule 
rliat  the  law  can  attain. 

I)iit  here  is  presented  a  claim  for  future  earnings 
as  nell  as  for  the  actual  values,  all,  too,  embracing 
tile  theory  of  punitory  damages,  and  withal,  a  claim 
fur  interest  superadded  to  the  sum  of  all  these. 


Apart  from  this  view  of  the  matter,  upon  which  no 
iimrr  time  will  be  spent,  a  review  of  the  authorities, 
litcd  in  the  opposing  argument,  seems  to  be  recpiired, 
IIS  well  as  some  reference  to  the  principles  a])plying 
ttt  the  subject. 

('0  '^'lic  (vcard  of  Sir  Edward  ThorHfon  as  umpire  in 
tile  ('((sc  of  the  United  St((fes  againsi  lirazil  is  cited.  This 
ciisc  has  been  analyze<l  in  this  argument,  and  it  ap- 
iHiirs,  as  Sir  Koundell  Palmer  states,  that  the  decision 


144 


DAMAGES INTEREST. 


proceeded  ui)Oii  "ordinary  judicinl  principles,"  and  he 
recites  tlie  esj)ecially  reckless  and  willful  character  of 
the  wrong-  in  this  seizure  connnitted  by  the  niilitarv 
forces  of  Mrazil,  the  shij)  being  then  under  that  na- 
tion's protection.  He  further  shows  (as  does  the 
record)  that  "the  payment  of  the  compensation  and 
indenniity,  though  promptly  claimed  at  the  time,  was 
for  many  years  delayed."  (See  Vol.  3,  Pa})ers  relat- 
ing to  the  Treaty  of  Washington,  ])p.  r)6f)-567). 

The  "ordinary  judicial  ])rinci})le"  to  which  Sir 
Koundell  Palmer  adverted,  demonstrates  as  he  shows, 
that  that  case  came  within  the  rules  where  interest 
should  be  jiiven  in  the  wav  of  damaji-es  as  for  a  reck- 
less  or  malicious  tort,  an<l  also  trhcrc  flicre  has  hecn 
^^  i(iirc((s()t/(ihlr  (Jrhti/'^  in  the  ])ayment  of  the  compen- 
sation, when  ])romptly  claimed,  and  with  an  undis- 
])Uted  basis  for  it,  set  forth  in  the  claim. 
3ifi.,p.554.  '^rhc  learned  counsel  concludes  with  Sedgwick,  as 
follows: 

3  Id.,  p.  ut)2.  Whpi'e  money  is  due  without  any  delinite  time  of  payment, 
and  there  is  no  eontruct,  express  or  implied,  that  interest  shall 
be  paid,  the  Knglish  rule,  independent  of  statute,  is  that  it 
can  not  be  claimed. 

And  he  (pu>tes  the  rule  of  the  New  York  judgments, 
as  to  'n/fcirsf,  as  follows: 

In  two  actions  against  a  master  of  a  ship  for  nondeliv- 
ery of  goods,  it  was  held  in  New  York  that  the  .iury  niiglit 
give  <lamages  if  the  conduct  of  the  defendant  was  improper, 
1.  e.,  where  fraud  or  gross  misconduct  could  be  imputed  to 
him ;  but,  it  appearing  that  such  was  not  the  fact,  it  was  not 
allowed;  and  that  interest  may  be  given  by  way  of  punish- 
ment for  any  illegal  conversion  or  use  of  anothers  property. 

And  the  English  rule,  (pioted  from  Sedgwick,  where 
"It  (interest)  is  imposed  to  ])uni8h  negligence,  tor- 
tious, or  fraudulent  conduct." 

(I))  The  Jaif  Treat}/  Case,  and  the  opbiionof  Sir  Johi 
NichoU  is  cited.     Interest  was  given  under  that  treat^ 


Id. 


Id.,  p.  552. 


DAMAGES — INTEREST. 

(Ill  the  claims  which  were  for  ^'■dchis  bona  fide  con- 
niicti'd  before  the  i)eace,  still  remaining'  owing-  to 
iliem  [British  subjects]  by  citizens  or  inhabitants  of 
the  I'nited  States;"  but  it  was  i)rc>vide(l  that  even 
tlmt  provision  should  not  extend  to  losses  occasioned 
bv  the  manifest  deJay,  negligence,  or  willful  omission 
of  tlie  claimants. 

As  to  tlie  claims  in  favor  of  the  United  States,  Sir 
John  XichoU  recommended  interest  on  the  ascer- 
tiiiiu'd  amount  of  the  "original  cost"  of  the  property 
(it'tlie  claimants.  Of  course  the  original  cost  was  a 
ctitiiiu  basis  for  the  computation;  but  it  is  expressly 
]ir(»\i(led  in  tlie  treaty  in  that  case  that  a  recovery 
sliiill  not  be  had  for  losses  or  damages  occasioned  by 
the  manifest  deJaji,  etc.,  of  the  claimants.  (See  for 
tlie  (hstinction,  British  argument,  id.,  ]).  561  et  seq.) 

The  case  at  Geneva  radically  differs  from  this  case, 
ami  iimong  otlier  distinctions  it  is  to  be  observed  that, 
iis  stilted  bv  the  British  xVrljitrator  at  Geneva,  Sir 
Alexander  Cockburn  (quoted  .snpra),  the  original  list 
of  private  claims  was  "forwarded  bv  i^Ir.  Seward  to 
Mr.  Adams  in  1<SG(),  and  commun'imted  hi/  the  latter  to 
till-  llrltish  (iorrnniicnt.^^ 

{(:)  Tlir  aif/nmritt  of  the  Attonieif-General  of  the 
Uiiifrd  States  (T!7y7)  under  the  Jiiidiitfj  of  the  Emperor  of 
liriiiHu/f/  is  eited.  It  is  true  that  that  advocate  argued 
that  tlui  Unite('  States  should  have  interest  in  that 
case  as  pjvrt  oi  the  indemnity  claimed  by  that  Gov- 
(iiiiiK'Ht;  out  the  case  is  not  an  authority  for  Great 
Britain,  for  the  reason  that  the  Connnissioners  did 
lint  agree  U})oii  a  decision  }  iid  the  result  was  another 
su|(})h'mentfiry  convention  between  the  two  countries. 
iSee  Sir  Rouudell  Palmer's  review  of  the  case,  sujna.) 

('/)  The  ease  in  1  P.  WlUiants  Hep.,  Elkins  v.  East 
IniVid  Co.,  is  eited.  Was  not  decided  on  the  principles 
"f  iiitcniational  law. 

The  case  turned,  too,  uj)on  the  rule  that  he  who 
B  s 10 


145 


146 


DAMAGES INTEREST. 


takes  another's  money  or  his  ])ioi)crty  and  turns  it 
into  money  for  his  own  use  shall  respond  in  interest. 
(See  Sir  Christopher  Robinson  and  Wirt,  infra.) 

There  is  no  question  tliat  international  law  does 
not  sanction  the  allow^ance  of  interest.  It  can  only 
be  charged  as  "damages  for  withholding-  money  which 
the  yiiXYtx  ought  to  ])av  and  would  n<^t  or  could  not," 
(I  Op.  Atty.  Gen.,  208  (Wirt). 

"Interest  is  not  an  integral  })art  of  a  debt  under  the 
connnon  law  of  England  as  accepted  in  the  United 
States."  (See  2  Wharton's  Dig-.,  sec.  246,  and  ca»es; 
Gordon  v.  United  States,  7  Wall.,  188.) 

In  the  case  of  the  Montijo,  where  the  United  States 
was  a  claimant  ag-ainst  Cohnnbia  before  the  British 
3Iinister  as  umpire,  5  })er  cent  interest  was  disallowed 
for  the  following'  reasons,  (pioted  from  the  opinion 
of  the  um])ire: 

First.  Because  there  is  no  settled  rule  as  to  the  payment 
of  interest  ou  claims  on  countries  or  governments. 

Secondly.  Because  it  seems  open  to  question  whether  in- 
terest should  accrue  during- the  i)rogre8S  of  diplomatic  nego- 
tions,  which  are  often  protracted  in  their  character. 

Thirdly.  Thin  reanon  npiMes  icith  special  force  to  negotia- 
tions ichich  result  in  an  arbitration  or  friendly  arrangement,* 

Fourthly.  That  whilst  doing  what  he  considers  strict 
justice  to  the  claimants  by  giving  to  them  the  full  value  of 
the  use  of  their  vessel  daring  her  detention,  he  desires  to 
avoid  any  appearance  of  punishing  the  Colombian  people  at 
large  for  an  act  with  which  very  few  of  tiiem  had  anything 
to  do,  and  which  affected  no  Colombian  interests  b'iyond 
those  of  a  few  speculators  in  revolutions  iu  Par;..uia,  (Vol. 
GG,  Brit,  and  For.  State  Papers,  1874-75,  pp.  420-421.) 

Finally  we  cite  Sir  Christo])her  Robinson,  who  was 
the  rei)orter  of  Lord  Stowell  (Sir  W.  Scott),  the  great 
English  authority  on  public  and  private  international 
law,  on  the  (luestion  as  to  whether  interest  should  be 
allowed  to  the  United  States  on  the  award  of  the 
Em})eror  of  Russia  against  Great  Britain. 


*  Oa  this  point  see  Aiuer.  v,  Lungstreet  (10  Pa.  St.,  145). 


DAMAGES — INTEREST. 

Till'  tollowino-  is  his  opinion  called  for  by  the 
Hiitisli  (xovennnent  on  this  subject: 

Tlie  question  of  interest  presents  a  q  aestion  of  considerable 
importance  and  delicacy,  and  to  which  it  will  be  difficult  to 
ai)i)l,v  the  analogy  oi  rules  derived  from  legal  proceedings, 
iiulependent  of  the  political  considerations,  which  may  have 
legulrtted  the  conduct  of  the  power  making  compensation  in 
the  particular  case.  In  that  view,  it  seems  to  be  a  reasonable 
distinction  which  is  raised,  that  sovereign  powers  do  not 
usually  pay  interest  unless  they  stipulate  so  to  do. 

The  obligations  of  Governments  for  civil  injuries  are  mat- 
ters of  rare  occurrence,  and  depend,  in  form  and  substance, 
as  iniu'li  on  liberal  concessions,  or  on  reciprocal  engagements, 
as  on  the  iutriusic  justice  or  equity  of  the  claim.  They  are 
iisiKilIti  compensations  made  oh  questions  in  doubt,  after  von- 
mJerahle  intervals  of  time,  by  ichicli  interest  is  much  enhanced. 
Tiiey  iue  also  compensations  for  the  acts  of  others;  for  the 
loiiscMiuences  of  error  or  misunderstanding  rather  than  of 
intentional  injury,  and  for  cases  in  which  no  profit  or  ad- 
vantage has  accrued  to  the  party  by  whom  such  compen 

ation  is  made.  Considerations  of  this  kind  seem  to  require 
tliiit.  if  interest  is  to  be  paid  as  part  of  the  compensation  by 
treaty,  it  should  be  matter  of  special  arrangement  as  to 
amount  and  particulars;  aiul  the  reasonableness  of  that 
[  I'xpeetation  supports  the  disiiuction  suggested,  that,  where 
III)  such  stipulation  is  made  between  Sovereign  I'owers, 
interest  shall  not  be  considered  as  due. 

Interest  is  not  to  be  computed  as  between  Sovereign  Pow- 
j  ers  ex('ei>t  by  express  stipulation.  (Vol.  l^,  Papers  Relating 
[  to  tiic  li'^aty  of  Washington,  p.  .505.) 

The  same  authority  states  the  general  rules  suc- 
liiH'tlv  in  the  followino-  words: 

The  rules  of  law,  as  far  as  they  may  be  applicable  to  this 
question,  do  not  favor  claims  of  interest,  except  under  special 

I  circnnistances,  as  in  cases  of  agreement,  expressed  or  implied, 

I  or  ot  the  possession  or  enjoyment  of  ijitermediate  profits,  or  of 
injury,  })roperly  so  termed,  in  respect  to  the  tortious  nature 

I  of  the  act,  for  which  the  compensation  is  to  be  made.    (Id., 

I  p.  5(11.) 

Ill  tlu3  Geneva  case  certain  interest  was  allowed, 
wholly  in  the  discretion  of  the  arbitrators,  in  lieu  of 


147 


:.l,^i-. 


148 


DAMAGES 8AYWARD    COSTS. 


certain  earnings,  vvliere  it  a])peare(l  that  tlie  Ameri- 
can Government  had  presented  tlie  claims,  which 
were  ])assed  u})on  by  tlie  arbitrators,  immediately  at 
the  close  of  the  war  in  1S06. 

Interest  seems  to  have  been  allowed  at  the  lowest 
rate  from  the  date  of  the  filing-  of  the  claims,  and  not 
from  the  date  of  the  ca])ture  of  the  ships. 

In  this  case,  as  it  has  been  shown  in  the  Introduc- 
tion to  this  argument,  (Ireat  Britain  expressly  stated 
that  the  circumstances  M'cre  sitrh  that  the  chums  could 
not  he  audited  or  ])re8eiifcd,  and  suggested  that  in  lieu 
of  auditing  and  presenting  the  claims  at  the  time  a 
Connnission  should  be  a})])ointed. 

This  suggestion  resulted  in  the  Paris  Arl^itration, 
and  the  claims  then  for  the  first  time  a})peared  to 
the  United  States.  Even  th.en,  owing  to  the  ques- 
tions of  citizenship  and  others,  no  computation  could 
1)6  or  was  made,  and  then  co)i,slderatiori  ivas  h//  afjrce- 
meiit,  in  the  stipulated  findings,  again  })Osti)oned. 


It  results  that  imder  the  law  and  precedents — 

(1)  Interest  can  not  be  allowed  as  a  matter  of 
right;  and 

(2)  Hiat  under  no  circumstances  can  interest  be 
allowed  upon  values  from  a  date  ])rior  to  the  Paris 
award,  or,  as  we  submit,  prior  to  the  ascertainineut  ot 
the  claims  by  this  Commission. 

(3)  That  the  rate  of  interest,  if  allowed  at  all,  can 
not  be  fixed  by  a  local  rate  or  by  a  munici})al  rate. 

THE    "COSTS  IN  THE   SAY  WARD   CASE." 

TheUnit(;d  States  stand  upon  their  motion  to  dismiss 
this  claim  on  the  ground  that  the  Connnissioners  h.ave 
no  jurisdiction  to  consider  it  under  the  Convention, 


tiir   the    foil 
I'duclusive: 

The   item, 
iidinitted  to 
iiieiit  in  and 
Coui't  of  the 
to  the  Feder 
/'.  Sfti/icard, 
C'stimate  87,< 
in  behalf  of 
costs  of  the  c 
di(trt/e,uiii(\e 
is  a  claim  for 
>;l,S()(). 

(1)  There 
liv  tlie  Con 
on  account  o 
hcliiilf  Grea 
tion  from  th( 
the  Treaty 
of  the  said  '^ 
tiim;d  claim 
preamble  he 

The  Unit 

"IKTSOU.'* 

{■2)  Tin 
of  the  said  1 
claim."     It 
ish  claims, 
Findings,  w 
('on\  t'Ution, 


S  1 


nns 


Tril 


)i 


1 111(1  mgs  m 
the  British  ( 
lidiof  Septe 
of  the  Trea; 


DAMAGES SAYWARD    COSTS. 


149 


till'   the    following-  reasons,    any    one   of    which    is  ' 

ciiiiciusive: 

The  item,  without  interest,  is  for  862,817.12, 
iiiliiiitted  to  be  the  expenses  of  the  liritisli  Govern- 
iiunt  in  and  about  a  vain  a])})lifation  to  the  Suj)reme 
Court  of  the  United  States  for  a  Avrit  of  })roliibition 
to  the  Federal  Court  of  Alaska  in  the  case  of  tlie  W. 
P.  S(ii/ic(ir(l,  a  fishinj^  schooner  worth  at  the  hig-hest 
(stiinate  87,000.  It  a})pear8  by  the  claim  presented 
ill  behalf  of  the  owners  of  the  schooner  that  for  the 
costs  of  the  owners  in  litij^ation  entirely  outside  of  this 
(■liiir(/e,  made  in  behalf  of  the  British  Government,  there 
is  a  claim  for  legal  expenses  and  "costs"  amounting  to  " 

^l,soo.  .   . 

(1)  There  is  nothing  referred  to  this  Commission 
liy  the  Convention  under  Article  I  except  "claims 
111!  account  of  injuries  sustained  by  persons  in  whose 
hcliiilf  Great  Britain  is  entitled  to  claim  compensa- 
tion from  the  United  States  and  arising  by  virtue  of  ; 
the  Treaty  aforesaid,  the  Award,  and  the  Findings 
of  the  said  Tribunal  of  Arbitration,  as  also  the  addi- 
tioiijil  claims  specified  in  the  fifth  paragraph  of  the  '■' 
preamble  hereto." 

The   United  Kingdom  of  Great  Britain  is  not  a 
"person." 

(■J)  '^riiis  is  not  a  claim  api)earing  in  the  "Findings 
itfthe  said  Tribunal  of  Arbitration"  or  an  "Additional 
claini."  It  did  not  ap[)ear  in  the  schedule  of  the  Brit- 
ish claims,  ])ages  1  to  OO,  inclusive,  specified  in  the  7 
Fiiiiliiigs,  which,  as  has  been  seen,  are  a  part  of  this 
('oii\('Ution.  Those  claims,  which  were  before  the 
Paris  Tribunal,  and  specifically  })ointed  out  in  the 
Kimlings  named  in  the  Convention,  were  set  out  in 
the  British  case,  which  was  delivered  on  or  before  the 
i!th  ..f  September,  181)2,  in  accordance  with  Article  HI^fo.anTe- 


i 


the  Treaty  of  February  21),  181)2. 


print,  p.  5. 


150 


DAMAGES — SAYVVARI)    COSTS. 


Vol. H,  Aiii.^r-      There  was  iiotliiij"-  about  tliis  claim  in  that  case, 


2G9. 


print,  p.  and  n(»tliin<i-  of  tlie  kind  was  |)resented  until  thm 
months  f/ieird/fo;  when  the  British  counter  case  was 
filed,  disclosing"  at  Jiage  81')  of  that  counter  case  this 
identical  claim,  whicii  was  its  tirst  attem})ted  appear- 
ance before  the  Paris  Tribunal. 

Now  the  Hritish  argument,  here,  states  the  follow- 


Page     185, 
Fol.  30 


nig; 


I  Am.  lie 
print,  pp 
18-19. 


Id., 


The  tacts  are,  therefore,  that  this  i)articu]ar  claim  was 
formulated  and  2)l<ticd  bf/ore  ftie  Paris  Tribunal.  It  iras  not 
then  objected  to  as  a  fair  matter  for  consideration. 

This  again,  is  a  striking  errctr. 

As  a})])ears  by  Protocol  H  of  the  Paris  Tribunal,  on 
April  4,  1893,  the  United  States  promptly  moved  to 
strike  t/iis  item  out,  on  the  gnumd  that  it  was  tendered 
for  the  first  time  in  ihe  counter  case,  and  was  not 
pertinent  or  relevant  bv  wav  of  rejdy.* 
Vol.ii,Amer-      ()u  Ai)ril  7,  1S93,  the" American  counsel,  Mr.  Phebs, 

loan    lie-       n     i     ',  .  i      ,•  t  •        i 

print,  p.  called  the  motion  up,  and  after  some  discussion  be- 
tween counsel  and  the  arbitrators,  it  was  j)ost))oiie(l 
until  April  12th. 

On  the  latter  day  (April  12th),  as  appears  by 
Protocol  /',  the  consideration  of  the  motion  was  post- 
poned until  such  time  "as  shall  hereafter  be  indicatetl 
by  the  Tribunal." 

The  argument  (m  the  main  (piestions  followed, 
and  the  next  official  act  touching  this  claim,  it  having 
been  designated  l)y  the  British  counsel  as  a  matter  of 
"small  imi)ortance,"  was  on  May  31,  18JI3 — Protocol 
HO — when  the  British  Government,  through  Sir 
Charles  Russell,  sul)mitted  to  tlu^  Arbitrators  in  writ- 
ing the  (luestions  of  fact  and  claims  of  Great  Britain 
as  to  which  a  finding  was  asked,  describing  the 
Vohi,  id.,p.  ^|.^l^j^^  as  between  pages  1  to  GO  of  the  original 
British  case  only,  thus  excluding  and  withdraiving  tlm 
contested  iteiii. 


149. 


Vol.   I, 
p.  22. 


Vol.  11,  Id.,p 
149. 


It  was  put  iu  at  the  extreme  end  of  the  counter  case. 


KM 


DAMAGES — SAY  WARD   COSTS. 


161 


It  w  as  tlierefore  never  received  by,  and  was  never 
•lictore  tlie  Paris  Tribunal." 

T(»  conclude  the  Paris  history,  the  ''rril)unal  itself,  ^°^jipp.  80- 
uiioii  the  })ro])osition  submitted  in  writin<>'  l)y  Sir 
('liiirles  Russell,  on  August  loth  Hdlowing,  made  the 
Findings  of  Fact,  and  found  the  claims  before  them,  in 
respect  of  which  Findings  of  Fact  were  refjuired,  to  l)e, 
(inly  those  between  jjages  1  to  (50  inclusive  of  the 
oriiiiiial  liritish  case,  thus  formally  excluding  this 
cliiini  by  the  act  of  the  Tribunal  itself  as  one  ttot 
"  before"  it. 

Tli(!  British  argument  is  again  in  error  when  it 
sii}s  there  were  no  other  costs  for  Tlw  Sa i/ ira nl  wh\c\\ 
(•(iiild  be  referred  to.  They  have  been  referred  to 
and  stated  as  amounting  to  81, SCO  in  the  liritish 
lujiiiment  at  page  111,  and  were  referred  to  and  set 
(lilt  ill  the  orlf/inal  British  schedule,  at  l)age  li),  j)assed 
u|i(iii  as  'before  the  Paris  Tribunal,"  amounting  to 
XI.  KM). 

They  are  there  set  down  as  claims  on  accoinit  of 
ii  "pi'rson,"  i.  e..  Cooper,  the  owner  of  the  Sai/trard 

(;})  This  claim  is  not  an  "xVdditional  claim"  lim- 
iti'(l  by  Article  I  of  this  Convention  as  specified  in 
the  fifth  paragraph  of  the  preamble,  and  is  as  ex- 
]ii('ssly  excluded  from  reference  under  that  head  as  it 
is  ill  terms,  as  above  shown,  excluded  from  the  class 
iippcaring  "before  the  Paris  Tribunal." 

(4)  iVs  to  the  efi'ect  of  the  "Appendix"  of  claims 
iittiiidied  to  the  Convention: 

The  title  of  that  Appendix,  as  attached  to  the  Con- 
vention, excludes  the  costs  in  the  Saijward  case  for 
tile  reasons  before  stated.  That  title  is  "Claims  .sub- 
mitted to  the  Tribunal  of  Arbitration  at  Paris."  The 
words  "costs  in  the  Saijirard  case,"  as  noir  construed 
by  ( Treat  Britain,  are  inter})olated  under  that  title. 
It  need  hardly  be  argued  that  such  an  annex  or 
(<cliedule  can  not,  in  any  case,  control  the  Convention, 


152  DAMAGES SAY  WARD    COSTS. 

or  add  to  the  ('ouveiitioii  a  claiin  or  a  matter  ex- 
cluded by  tlie  provisions  of  the  Coiiventloii  itself.  It 
has  been  seen  that  the  costs  in  the  Saifiraril  casr  .'ire 
so  excluded.  The  rule  of  interi)retation,  as  has  l)een 
seen,  is  the  same  of  a  treaty  as  of  a  statute.  The 
attachn)ent  of  schedules  to  statutes  is  a  coiniiion 
practice  enouj^h,  l)Ut  this  is  the  rule  as  to  them: 

When  in  any  inaiiuer  repujiuaut  to  the  provisions  of  the 
statute  itself,  the  statute  will  eoutrol  over  tlie  schedule.  (See 
Keg.  V.  Baines,  12  (5?)  Ad.  &  El.,  227  (Tindal,C.  J.);  Bart- 
lett  r.  Gibbs,  u  M.  ^\:  G.,  Si6;  Allen  r.  Flicker,  10  Ad.  & 
El.,  040;  liegina  r.  Russell,  13  Q.  15.,  237;  Dean  p.  Greeu,  L. 
B.,  8  P.  D.,  79;  Clarke  r.  Grant,  L.  R.,  8  Exch.,  252.) 

(a)  Even  if  the  matter  were  not  absolutely  con- 
cluded on  the  (juestion  of  jurisdiction,  the  counsel  ut 
the  United  States  are  unaware  .>f  any  principle,  l)y 
which,  the  lepd  expenses  of  a  defeated  party,  incurred 
in  a  case  whenvin  he  has  vainly  invoke* I  the  wrong 
judicial  jurisdiction  for  relief,  can  be  allowed  liiui. 
The  rule  is  otherwise  in  a  proper  case,  if  the  i)arty 
has  pursued  the  proper  jurisdiction  by  a])peal. 

No  reclamation  can  Ije  made  ajiainst  a  (rovernnient, 
upon  judicial  acti(»n  in  its  courts,  unless  the  proceed- 
ing* complained  of  ha.«s  been  sanctioned  l)y  the  coint 
of  last  resort  in  the  judicial  system  of  the  country 
complained  (»f,  or  there  is  a  h'ndl  excuse  for  the  failure 
to  ap])eal. 

See  cases  directly  in  point  imder  the  Aujerican  and 
Ih'itish  Claims  (N>mmission  of  1871  from  ])]).  SS  tn 
141,  inclusive.  (Vol.  6,  })a[)ers,  etc..  Treaty  of  Wash- 
ington.) 

It  is  not  true,  as  intimated  in  the  British  argument, 
that  the  a])plicati(m  for  writ  of  proliil)ition  was  a  con- 
sent ])roceeding'. 

It  was  vigorously  conte.sted  by  the  United  States, 
and  the  note  vcfhdJe  of  the  Secretary  of  State,  referred 
to  in  the  British  Arg-uinent,  [A;n-il  8, 1888],*  recognizes 

*The  prohibition  proceeding  was  not   nstituted  till  January,  1891. 


or  t'x- 
'If.    It 


The 


"additional  claims." 

the  t'iU't  that  appeal  pr(K'et'(liii<is  luul  been  taken  in 
the  Siiificanl  case  by  Co(>])er,  and,  of  course,  lias  no 
ivt'cicnce  to  the  application  tor  a  writ  of  ])rohil)ition 
of  years  later.  The  costs  in  the  Sai/inird  case  in  the 
liti^iition  so  "a])pealed"  ini<>ht,  on  amicable  adjust- 
iiiciit,  be  included  in  the  convention,  ami  flict/  irrre. 

I'limll//,  the  owner  of  the  Siujwayd — the  claimant — 
IIS  Iiiis  been  seen,  is  a  civil  citizen  of  the  Tnited  States. 
Tlienias  H  Cooper  is  the  sole  owner  and  claimant 
witliin  the  findings  of  fact  of  the  Paris  Tribunal. 


153 


THE  "ADDITIONAL  CLAIMS." 


These  are  for  the  owners  of  the  Waitderer,  the 
W'nilfiril,  the  Ilcnrirtfd,  and  the  Oscar  (iinl  Hatf'ic. 

i'reamlde  5,  made  a  })art  of  Article  I,  by  reference, 
states  that  the  United  States  admits  no  liability  as  to 
tliciii.  The  facts  regarding-  these  cases  are  analyzed 
under  their  proper  heads,  infra. 

The  case  of  the  Winifred  is  concluded  against 
(iivat  Britain  by  the  action  of  Captain  Parr,  Her 
Majesty's  Naval  Connnander  in  the  I'acific. 

Th(;  handing  of  the  Wnufrcd  over  to  the  United 
States  authorities  fen*  ])rosecution  under  the  revenue 
laws,  liy  the  commander  of  a  IWti.sh  shij)  of  war, 
(Stops  that  Government  from  making  a  claim  as  much 
as  if  that  action  had  been  taken  by  royal  order.  It 
is  iiniversallv  recojiiiized  that  on  the  hi<>h  seas  or 
ill  t'uivign  waters,  the  connnander  of  a  connnissioned 
]Mil)li(' ship  of  war  rejn-esents  the  sovereignty  itself, 
ami  speaks  for  it.  Everything  done  by  him  is  pre- 
>uiiiablv  by  ti-e  direct  authoritv  and  express  order  of 
tlu'  State,  until  such  acts  are  exjn-essly  disavowed. 
(See  case  of  "Trent") 

*  Ml  this  all  writers  on  international  law  are  agreed, 
(See  Hall  Int.  Law,  sees.  65-226.) 

Tlie  point  that  the  seizure  was  made  outside  of  the 


154 


a 


ADDITIONAL    CLAIMS. 


jiirisdiotion  has  iiotliinji'  to  rest  upon.  When  tin- 
Britisli  ship  IVinificd  caiue  witliin  the  control  of  Her 
Majesty's  sliip  ol"  war,  in  the  harl)oi-  of  Unahiska,  .so 
far  as  any  privile^'e  from  extra-territorial  seizure 
was  concerned,  it  was.  as  it  could  be,  waived  l)y  the 
action  of  Great  liritain  acting"  thr()u<>h  Oonnuander 
Parr. 

The  additional  clainis  are  not  jyoverned  by  the  find- 
ing's  of  fact  or  the  ])roceeding's  of  the  Paris  Tribunal 
in  any  respect. 

The  international  (juestion  of  juris<liction  being' (Hit 
of  the  way,  insue  is  taken  Avith  the  ])( wition  of  the  Brit- 
ish counsel  that  the  Co«nnusi'M)ners  under  the  ])re8Wit 
Conventi<>n  can  re^-ise  the  finding'  of  the  court  of 
Alaska  on  any  juridical  ([uestion.  No  intermitional 
court  can  revise  the  judgment  of  the  court  of  anation, 
mdess  tluBt  judg'nieut  he  by  the  court  of  last  resort  in 
its  judicitd  system.  This  rule  is  established  as  one  of 
universal  ap])lication.  to  which  there  can  be  no  excep- 
tion, alliens  au  a})j)eal  was  prevented. 

The  owners  of  the  Wni'ifml  can  not  enter  this  inter- 
national ct'turt,  without  showing  an  unsuccessful  appeal 
to  the  last  appellate  jurisdiction  in  the  judicial  system 
of  the  Fnite<l  t^tates.  (See  vol.  <!,  Papers,  etc.,  Wnsli- 
ington  Ti-eat}',  ])j>.  88-141),  where  the  authorities  are 
colle<'ted  and  the  whole  sulvj^ct  is  e.xhaiistively  con- 
sidered and  is  i-e|)eatedly  pa>Mse<i  upon. 

In  this  case  the  point  of  pu'isdiction  was  not  uiiide 
by  the  owner:  he,i>roperlyac(|uiescing  in  the  direction 
of  the  ccninmander  of  11.  M.  S.  Meljwiiieuc,  defended 
(ni  the  merits  and  was  ''ondemned,  and  took  n<t  ap- 
peal. Moa'eover,  for  the  Wiuifrctl  to  recover  would 
be  ag'flinst  ]mblic  noli<'v.  Whatever  ])ur])osc  ot 
excuse  her  distress  might  serve,  tor  entering'  the  sea, 
she  was  thereafter  found  actually  eng-aged  in  takiuji' 
seals  in  vi(dation  <Ht'  the  lan's  of  both  Great  Britain  and 
the  United  Htntes,  jw  is  admitted  on  all  sides. 


It  is  the  H 

the  facts  ma\ 

able  cause  ol 

for  the  seizur 

cruincut  mul 

liu  cousidere 

adopted  in  t 

Minhable  cat 

and  brit.Mixi 

in,^rou  Treat 

(■asc'>  cited. 

•2  Spiuks,  23 

liciore  the  i^ 

cU'.,  pp.  13(i- 

In  this  cas 

Uiiflif  was  ti 

in;:'  St'a.     Il 

rei'tK-  i-epre 

iticiK .     Thai 

into  "ourt,  ]: 

dor  case  th 

States  and 

then,  was  ii 

Uo\( 'rumen' 

The  ccmr 

liriti><h  Coin 

dcinncd  the 

tiint  jndgmt 

tlu'  Inited 

>ei'/ure.     N 

facts  of  the 

must  rest  w 

Thi'  case 

(///'/  lf((tfi<\ 

treated  und 


!■■ 


"ADDITIONAL    CLAIMS." 


155 


en  the 
of  Her 

skn,  SI  I 


rind- 
fibuiial 


TlIE    08CAR    AND    IIATTIE    CASE. 

Ir  is  the  settled  rale  in  .such  eases  that  however 
tlie  tacts  may  turn  out,  if  the  captor  acted  on  reason- 
able cause  of  susi)icion,  damao-es  can  not  be  allowed 
fur  rlic  seizure.  But  in  this  case  Her  Majesty's  (tov- 
miiiicnt  under  the  Hindus  r'lroidi  set  out  what  should 
liL'  considered  the  prol)able  cause.  This  order  w^as 
aiLnitcd  in  the  United  States.  On  the  ([uestion  of 
iiinl);il)k^  cause  we  cite  TJic  Isnlie/la  T/ioiiijhsoH,  Am. 
111(1  l)rit.  Mixed  Com.,  Vol.  6,  Papers  lielatino- to  Wash- 
iiiiitoii  Treaty,  ]).  !)3;  Fdci/iqiir,  id.,  \).  1)7  et  se(j.,  and 
laso  cited.  And  see  J>t .  Lusliiitf/fin/  in  the  Lei(cu<Ji\ 
■1  Spinks,  236:  The  Pcfrrliof,  5  Wall,  28,  which  was 
liilorc  the  A'n.  ;iivl  Brit,  (.'ommission,  vol.  (!,  papers, 
itc,  pp.  13(;-i3!). 

Ill  this  case,  under  the  dioi/iis  vwcmli,  the  Oscar  and 
Ifiiffii'  was  turned  over  to  H.  M  .  S. Melpomene  in  Ber- 
ing:' Sea.  It  is  not  disputed  that  the  facts  were  cor- 
ncrly  i-(^))resent(^<l  to  the  commander  of  the  ^FeJ})»- 
iiiri/i .  That  ofHcer,  by  takin;^-  the  Oscai'  and  Jlattie 
intn  ourt,  passed  his  judji"ment  ujion  j)robable  cause. 
Her  case  thus  passed  from  the  control  of  the  ITnited 
States  and  the  res])onsibilit}'  for  proscM'ution,  from 
then,  was  in  the  hands  of  tiic  otlicers  of  the  iiritish 
tioxcrmnent. 

The  court  of  first  hearin^i' — the  supreme  court  of 
liritish  (yolumbia — on  a  full  hcarinji- of  the  facts,  con- 
ileiiine(l  tlie  ship.  It  is  said  now,  that  on  reversal  of 
that  jiidji'ment  by  the  appellate  court  ol'  Her  Majesty, 
the  I'nited  States  are  liable  as  for  dama<ies  for  the 
seizure.  Neither  (Tovermnent  would  be  liable  on  the 
taets  of  the  case,  but  in  any  case  the  responsibility 
imi-t  rest  with  (ireat  Britain. 

The  cases  <){  \\w  Heinietta,  the  Wanderer^  the  Osear 
II  in  I  I  faff  if,  and  the  Winifred  are  hereafter  espetrially 
tie.ired  under  tiieii  respective  heads. 


156        OBSERVATIONS    APPLYING    ONLY    TO    CERTAIN    CLAIMS. 

The  I'athjhxk'y,  in  Nenli  liaji,  Xo.  ^^7.— This  vi-sm1 
was  t'ouiul  in  waters  within  tlic  cxchisive  jurisdictidn 
of  tlie  United  States;  she  was  boarded  by  the  officers 
of  customs,  who  had  been  advised  that  she  had  escaped 
from  a  previous  seizure  that  luid  been  made  under 
the  direction  of  the  Treasury  Department  for  allei^ed 
viohition  of  tlie  hnvs  of  tlie  United  States. 

The  revenue  cutter,  without  delay,  towed  lier  to 
the  nearest  telej^-raph  station,  at  Port  '^Pownsend,  a  six 
hours'  run,  and  at  once  communicated  witli  the  Treas- 
ury Department  at  Washiii<>-ton,  whereupon  her  re- 
lease was  immediately  orderetl  l)y  telejji'raph.  JSiie 
was  detained  but  a  })art  of  one  day,  antl  the  utmost 
possible  ex[)edition  was  used  in  obtainino-  authoritative 
instructions  in  regard  to  her  case. 

For  this  act  Great  Britain  l)]-ings  a  claim  for  "seiz- 
ure" and  for  damages  for  future  catch. 

It  need  not  be  argued  that  the  general  rule  is  that 
all  fiU'eign  vessels,  and  for  this  purpose  even  ships  of 
war,  are  liable  to  visitati(»u  fntm  customs  and  (juar- 
antiue  orticers  oi"  the  nation  whose  jurisdiction  they 
enter.  (See  Bakers  Halleck,  Vol.  I,  p.  217,  notes '> 
and  (J;  and  see  Hall,  ])p.  i;i5-2<H)-J(M). 

The  United  States  have  statutes,  called  "hovering; 
acts,"  similar  t(»  those  of  (ireat  liritain,  and  "officers 
of  revenue  cutters  are  authorized  lo  search,  examine. 
and  remain  on  board  all  incctming  vessels,  domestic 
or  foreign,  when  within  4  leagues,  or  1"2  miles,  of  tlie 
coast."  (Kev.  Stat.  U.  S.,  sees.  27(;o-28()7-2868;  and 
see  9  (Jeo.,  II,  eha]).  35.)  The  Knglish  hiw  was 
enacte<l  in  173.');  the  American  act  in  17I*t>. 

The  law  as  to  a  vessel,  that  has  j)ut  into  a  foreign 
port  in  disti'ess,  is  perlectly  well  settled.  The  ])rivi- 
lege  of  such  vessel,  bv  the'  couiitN'  of  nations,  w  hi<di 
in  this  res))ect  has  become  international  h)W,  is  a(hMit- 
ted  to  the  fullest  extent:  but  the  exemption  does  not 
go  to  the  length  of  ex(duding  reasonable  (piaraiitine 
or  customs  inspection^.     The  detenti(tn  for  customs 


OBSERVATIONS    APPLYING    ONLY    TO    CERTAIN    CLAIMS. 


157 


lictioii 

( )tH('<.'rs 

scaped 

unck'i' 

lep'cd 

wv  to 
,  i;  six 
Tivas- 


seiz- 


sjicctiou  may  he  for  a  sufficient  time  to  ascertain 

I  the  character  of  the  sliip,   and  in  case  the  distress 

[iri\ilci>e  is  <'laimed,  hy  protest  or  otlierwise,  the  au- 

[tliKiitics  are  entitled  to  l)e  reasonabl}'  satisfied  of  the 

UiMtd  taitli  of  such  claim.     The  ^jrivilej^-e  itself,  so  far 

I  its  jHcperty  is  concerned,  goes  only  to  the  exein])tion 

if  the  ship  from  the  execution  of  the  laws  of  the 

jurisdiction,  which,  l)ut  for  the  privilege,  inlght  work 

tiii'tciture  of  ship  or  cargo 

Tlicre  is  no  (hjubt  whatever,  either,  that  if  the 
irivih'ge  be  claimed,  and  the  good  faith  of  the  claim 
is  fairly  doubted,  the  (juestion  may  l)e  l)rought  l)efore 
the  courts  of  the  nation  of  the  i)ort  for  trial. 

The  burden  of  proving  the  necessity  or  distress, 
wliich  brought  the  sliip  in,  is  u])on  the  ship.  (The 
l)i((iHi,  7  Wall.,  354:  and  see  The  CopcnlKUioi,  I  C. 
H(d).,  2S9.) 

Ill  any  case,  however,  the  privilege  must  be  as- 
xitcd  and  claimed  promptly  from  the  authorities  of 
tilt  jurisdiction  in  jierson,  or  by  a  consul  of  the  ship's 
iiatiuii;  otherwise  it  (h»es  not  avail. 

///  fills  cdsr,  as  flic  Coiniiiissioiicrs  irill  JiiuJ  on  rrj'cr- 
'iirr  In  till'  lii'coni,  the  claim  iiaic  set  up  on  flic  part  nf 
tills  rrs.sci,  that  she  was  in,  Xrah  Bail  to  ^\1ix  lirr  rial- 
il'i"  or  oflicririse  from  ilistrr.ss,  iras  ncrcr  iiiailc  to  flic 
risith/fi  oj/iccrs  at  am/  time,  or  broiu/lit  to  tlicir  attention 
t'inii'illi/  or  iiiforiiialli/! 

On  the  long  Pacific  coast  of  the  United  States, 
which  is  es})ecially  e.\))osed  at  all  tiuies  to  offenses 
iiuaiiist  the  revenue  laws,  or,  for  that  matter,  on  any 
"thcr  of  their  coasts  washed  l)y  the  high  seas,  the 
|irn|itr  officers  of  the  customs  service  may  visit  a 
dii|)  aud,  upon  reasonable  suspicion  as  to  its  charac- 
ter, detain  it  for  the  UL'"essary  time  to  ask  for  instruc- 
fiuiis  from  their  Government. 

The  right  and  the  practice  is  one  of  self-j)rotection, 
iiiid  not  one  that  any  nation  can  surrender.  The 
•listless  thetu'v,  and  the  bill  for  dama^'es,  originated 


158    OBSERVATIONS  APPLYING  ONLY  TO  CERTAIN  CLAIMS. 

with  Munsie,  like  many  other  things,  but  all  unwit- 
tinf'ly,  he  did  not  fit  his  ])root's  to  the  law  requiriuf)' 
that  the  distress  privilege  should  be  pronipt^.y  cUiiined, 
in  order  to  form  even  a  pretense  for  his  good  hope  of 
avails. 


Tlte  Black  Dinntond,  Xo.  o,  and  James  Gaml'w,  Xo. 
11. — These  claims  are  submitted  on  the  questions 
raised  on  the  motions  to  dismiss  them,  found,  re.s])ec- 
tively,  at  pages  16,  fol.  60,  and  37,  fol.  50,  of  Ajjpen- 
dix  A  (the  pleadings)  of  the  Record. 

They  are  treated  in  the  Argument  of  Great  Britain 
as  if  submitted  on  the  merits. 

They  are,  however,  submitted  under  stipulation 
found  at  })age  17  (id.),  wherein  it  is  agreed,  subject 
to  the  sanction  of  the  Commissioners,  that  they  may 
be  proceeded  with  for  the  })urj)ose  of  re[)orting  facts 
and  conclusions  to  the  res})ective  Governments. 

Provided  that  the  (luestiou  of  jurisdiction  of  the  Coinmis- 
siouei'S  under  the  Convention,  in  respect  of  said  chiinis,  shall 
remain  undecided,  but  the  Commissioners,  in  their  discretion, 
may  report  their  opinion  on  that  ('uestion,  counsel  intciidiug 
to  prejudice  in  no  way  whatever  their  respective  Governments 
in  the  above  matters. 

For  the  purposes  of  the  stipulation,  these  claims 
are  submitted  for  such  action  as  the  (^)nnnissioiiers 
may  take;  and,  as  bearing  upon  the  positions  takeuin 
the  motion  to  dismiss,  attention  is  invited  to  those 
jiarts  of  this  argument  bearing  u})on  the  interpretation 
andsco])e  of  the  Convention  on  the  question  of  juris- 
diction, and  also  to  ti)e  facts  as  hereinafter  analyzed. 


OBSERVj 

lis  of  die  dal 
that  counectio 
trict  court  of 
from  the  Gov 
can  cut  no  fij 
Jence,  the  aci 
tlic'\'  would  n 
I  after  the  seizi 
The  princi] 
That  a  tende 
it  a))i)ears  at 
l)een  accepte 
M'liwuii  non  r 

!{obi:rt  L 
Charles  ] 


The  Caroh'na,  Onward,  and  Thornton. — It  is  submitted 
as  a  matter  of  law  on  the  facts  hereinafter  discussed 
in  relation  to  the  schooners  Carolena,  Thornton,  and 
Onward,  that  the  respective  owners  of  those  vessels 
treated  the  acts  of  seizure  as  constituting  a  total  loss 


mmm 


OBSERVATIONS    APPLYING    ONLY    TO    CERTAIN    CLAIMS. 

IIS  ((f  file  (late  of  the  seizures.  And  moreover,  in 
that  (((nnection,  the  f'aihu'e  of  the  othcers  of  the  dis- 
trict c'ouit  of  Ahiska  to  act  on  the  telegraphic  orders 
tioiu  the  Government  for  the  release  of  these  vessels 
laii  cut  no  figure  on  this  question,  as,  under  the  evi- 
ilciice,  the  acts  and  conduct  of  the  owners  show  that 
tlu'V  would  not  have  accepted  a  release  at  any  time 
lifter  the  seizures. 

The  principle  to  be  applied  in  such  cases  is  this: 
That  a  tender  is  never  necessary  to  be  shown  when 
it  ajjpears  at  the  trial  that  the  tender  would  not  have 
ht'Lii  accepted  if  made.  Jks  vanum  mm  emjit;  Jus 
iicquaiit  non  requirit. 

Don  M.  Dickinson. 

HoBKRT  Lansing. 
Charles  B.  Warren. 


159 


i 


■:m 


Appendix  I. 

Condensed  protocols. 

Correspotulence  preliminary  to  the  negotiation  of  the  treaty  of 
Washinj/ton  xiffned  May  S,  1871. 


lion.  II AMI] 


ISir  Edicard  Thornton  to  Mr.  Fish. 

Washington,  January  2(j,  1871. 

Sib:  In  compliance  with  an  instruction  which  I  have 
received  from  Earl  Granville,  I  have  the  honor  to  state  tiiat 
Her  .Majesty's  ( iovernnient  deem  it  of  importance  to  the  good 
relations  wliich  they  are  ever  anxious  should  subsist  and 
be  strengthened  between  the  United  States  and  Great 
Dritain,  that  a  friendly  and  comi)lete  understanding  should 
be  come  to  between  the  two  Governments  as  to  the  extent  of 
the  rights  which  belong  to  the  citizens  of  the  Unites  States 
and  Her  Majesty's  subjects,  respectively,  with  reference  to 
the  fisheries  on  the  coasts  of  Her  ^lajesty's  [)()sse8sions  in 
North  America,  and  as  to  any  otiier  (pxestions  between  tliem 
which  affect  the  relations  of  the  Tnited  States  toward  those 
possessions. 

As  tlie  consideration  of  these  matters  would,  however,  in- 
volve investigations  of  a  somewhat  complicated  nature,  and 
as  it  is  very  desirable  tiiat  tliey  should  be  thoroughly  exam- 
ined, 1  am  directed  by  Lord  Granville  to  propose  to  the  Gov- 
ernment of  the  United  States  the  appointment  of  a  Joint  iligli 
Commission,  which  shall  be  composed  of  members  to  be  named 
by  each  Government;  shall  hold  its  sessions  at  Washington, 
and  shall  treat  of  and  discuss  the  nu)de  of  settling  the  dif- 
ferent questions  which  have  arisen  out  of  the  fisheries,  as 
well  as  all  those  which  attect  the  relations  of  the  United  States 
toward  Her  Majesty's  possessions  in  North  America. 

I  am  confident  that  this  proposal  will  be  met  by  your 
Government  in  the  same  cordial  spirit  of  friendship  wiiicli 
has  induced  Her  Majesty's  Government  to  tender  it,  and  I 
can  not  doubt  that  in  that  case  the  result  will  not  fail  to 

160 


CONDENSED    PROTOCOLS. 


161 


coiitribute  to  the  maintenance  of  the  j;oo(l  relations  between 
the  two  countries,  which  I  am  convinced  the  Government  of 
the  United  States,  as  well  as  tliat  of  Her  Majesty,  equally 
have  at  heart. 

1  have  the  honor  to  be,  with  the  highest  consideration,  sir, 
yniiv  most  obedient,  humble  servant, 

Edvvakd  Thoknton. 

lion.  IlAiriLTON  Fish,  d-c. 


Mr.  Fish  to  Sir  Edward  Thornton. 


as 


Sir: 
iioto  of 


Depart:ment  of  State, 

Washiiijjton,  Janiiori/  30,  1871. 

1  have  the  honor  to  acknowledfie  the  receipt  of  your 
January  2G,  in  which  you  inform  lae,  in  compliance 


witli  instructions  from  Earl  Granville,  that  Her  Majesty's 
(i(>v(M'iiment  deem  it  of  importance  to  thi  good  relations 
wliicli  they  are  ever  anxious  should  subsist  and  be  strength- 
ened between  the  Tnited  States  and  Great  Britain,  that 
a  friendly  and  comi)lete  understanding  should  be  come 
to  lictween  the  two  Governments  as  to  the  extent  of  the 
liiilits  which  belong  to  the  citizens  of  the  United  States 
and  Ifer  Ma,jesty's  subjects,  respectively,  witti  reference  to 
the  lisheries  on  the  coast  of  Her  Majesty's  possessions  in 
Xoi'tli  America,  and  as  to  any  other  questions  betwt>on  them 
wliieh  affect  the  relations  of  the  United  States  towaid  those 
liossessions;  and  further,  that  as  tlie  consideration  of  these 
iliiestions  would  involve  investigations  of  a  somewhat  com- 
plicated nature,  and  as  it  is  very  desirable  tliat  tliey  should 
he  tiioroughly  examined,  you  are  directed  by  Lord  Granville 
to  ]ir(»pose  to  the  Government  of  the  United  States  tiie 
aiiiioiiitment  of  a  Joint  High  Commission,  wliich  shall  be 
composed  of  members  to  be  named  by  each  Government, 
siiali  liold  its  sessions  at  Washington,  and  shall  treat  of  and 
diseiiss  the  mode  of  settling  the  different  ([uestions  that  have 
arisen  out  of  the  fisheries,  as  well  as  all  those  wliich  affect 
tlie  relations  of  the  United  States  toward  Her  Majesty's  pos- 
sessions in  North  America. 

1  have  laid  your  note  before  the  President,  who  instructs 
me  to  say  that  he  shares  with  Her  Majesty's  Government  the 
appiceiation  of  the  importance  of  a  friendly  and  complete 
understanding  between  the  two  Governments  with  reference 
to  tlie  subjects  specially  suggested  for  the  consideration  of 
the  proposed  .loint  High  Commission,  and  he  iully  recog- 
nizes the  friendly  spirit  which  has  prompted  the  proposal, 
n  s 11 


i*S 


162 


CONDENSED    PROTOCOLS. 


Tlie  President  is,  however,  of  tlie  opinion  that,  without  tlie 
adjnstment  of  a  class  of  questions  not  alluded  to  in  youi 
note,  the  proposed  High  Coniniission  would  fail  to  establish 
the  permanent  relations  and  the  sincere,  substantial,  and 
lasting  friendship  between  the  two  (lovernuients  which,  in 
common  with  Her  INIajesty's  Government,  he  desires  should 
prevail. 

Ue  thinks  that  the  removal  of  the  differences  which  arose 
during  the  rebellion  in  the  United  States,  and  which  have 
existed  since  then,  growing  out  of  the  acts  CMnmitted  by 
the  several  vessels  which  have  given  rise  to  the  claims  generic- 
ally  known  as  the  "Alabama"  claims,  will  also  be  essential 
to  the  restoration  of  cordial  and  amicable  relations  between 
the  two  Governments.  He  directs  me  to  say  that  should 
IJer  ^Majesty's  (Tovernment  acce])t  this  view  of  the  matter, 
and  assent  that  this  subject  also  may  be  treated  of  by  the 
proposed  High  Commission,  and  may  thus  be  put  in  the  way 
of  a  iiual  and  amicable  settlement,  this  Government  will. 
with  nuich  pleasure,  appoint  High  Commissioners  on  the  part 
of  the  United  States,  to  meet  those  who  amy  be  appointed 
ou  behalf  of  Her  Majesty's  Government,  and  will  spare  no 
efforts  to  secure,  at  the  earliest  practical  moment,  a  just  aud 
anucable  arrangement  of  all  the  questions  which  now  unfor- 
tunately stand  in  the  way  of  an  entire  and  abiding  friend- 
ship between  the  two  nations. 

1  have  the  honor  to  be,  with  the  highest  consideration,  sir, 
your  obedient  servant, 

Hamilton  Fish. 

Sir  Edwaki)  Thornton,  K.  C.  B.,  ibc. 


lion.  Hami 


Sir  Edward  Thornton  to  Mr.  Fish. 

Washington,  February  1, 1871. 

Sir:  1  have  the  honor  to  acknowledge  the  receipt  of  your 
note  of  the  30th  ultimo  and  to  offer  you  my  sincere  and 
cordial  thanks  for  the  friendly  and  conciliatory  spirit  which 
pervades  it. 

With  reference  to  that  part  of  it  in  which  you  state  that 
the  President  thinks  that  the  removal  of  the  differences 
which  arose  during  the  rebellion  in  the  Ignited  States,  and 
whi(^h  have  existed  since  then,  growing  out  of  the  acts  com- 
mitted by  the  several  vessels  which  have  given  rise  to  the 
claims  genericjilly  known  as  the  "Alabama"  claims,  will 
also  be  essential  to  the  restoration  of  cordial  and  amicable 


mmm 


CONDENSED    PROTOCOLS. 

leliitioiis  between  the  two  Governments,  I  have  the  honor  to 
iiiforni  you  that  I  have  submitted  to  Earl  Granville  the 
iipiiiioii  thus  expi'essed  by  the  President  of  the  United 
Stati's,  the  friendliness  of  which,  1  beg  you  to  believe,  I  fully 
ai)i)rt'(!iiite. 

I  (vni  now  autliorized  by  his  lordship  to  state  that  it  would 
jiivc  I  ler  Majesty'sGovernment  great  satisfaction  if  the  claims 
coiniiionly  known  by  the  name  of  the  "Alabama"  claims  were 
submitted  to  the  consideration  of  the  same  High  Commission 
by  which  Her  Majesty's  Government  have  proposed  that  the 
i|uesti()ns  relating  to  the  British  possessions  in  North  America 
should  be  discussed,  provided  that  all  other  claims,  botli  of 
British  subjects  and  citizens  of  the  United  States,  arising  out 
of  acts  committed  during  the  recent  civil  war  in  this  country, 
are  similarly  referred  to  the  same  Commission.  The  expres- 
sions made  use  of  in  the  name  of  the  President  in  j^our  above- 
iiiL'iiti(»ned  note,  with  regard  to  the  "Alabama"  claims, 
loiivince  me  that  the  Government  of  the  United  states  will 
loiisidcr  it  of  importance  that  these  causes  of  disputes 
lii'tw cen  the  two  countries  should  also,  and  at  the  same  time, 
bi'  (lone  away  with,  and  that  you  will  enable  me  to  convey  to 
my  (iovernment  the  assent  of  the  President  to  the  addition 
vliii'li  they  thus  propose  to  the  duties  of  the  High  Commis- 
sion, and  which  can  not  fail  to  make  it  more  certain  that  its 
labors  will  lead  to  the  removal  of  all  diHerences  between  the 
two  countries. 

1  liiive  the  honor  to  be,  with  the  highest  consideration,  sir, 
your  most  obedient,  humble  servant. 

Edward  Thornton. 
Hon.  Hamilton  Fish,  (fcc. 


163 


Mr.  Fish  to  Sir  Edtvard  Thornton. 

Department  of  State, 

Waahiiiffton,  February  3,  1871. 

Sii! :  1  have  the  honor  to  acknowledge  the  receipt  of  your 
note  of  the  Ist  instant,  in  which  you  inform  me  that  you  are 
autliorized  by  Earl  Granville  to  state  that  it  would  give  Her 
Majesty's  Government  great  satisfaction  if  the  claims  com- 
monly known  by  the  name  of  the  "Alabama  claims,"  were 
submitted  to  the  consideration  of  the  same  High  Commission 
'•y  wliich  Her  Majesty's  Government  have  proposed  that  the 
questions  relating  to  the  British  possessions  in  North  Amer- 
ica should  be  discussed,  provided  that  all  other  claims,  both 
of  British  subjects  and  citizens  of  the  United  States,  arising 


?    -.! 


164 


CONDENSED    PROTOCOLS. 


out  of  acts  coniuiitted  durinj;  the  recent  civil  war  in  tliis 
country,  are  similarly  referred  to  the  same  Coinmisaiou. 

I  have  laid  your  note  before  the  President,  and  he  has 
directed  me  to  express  the  satisfaction  with  which  he  ims 
received  the  intellifjence  that  Earl  (Iranville  has  authorized 
you  to  state  that  1  ler  Majesty's  Government  has  accepted 
the  views  of  this  Government  as  to  the  di8i)osition  to  be 
made  of  the  so-called  "Alabama  claims." 

He  also  directs  me  to  say,  with  reference  to  the  remainder 
of  your  note,  that  if  there  be  other  and  further  claims  of 
British  subjects  or  of  American  citizens  g:rowinj>'  out  of  acts 
committed  during  the  recent  civil  war  in  this  country,  he 
assents  to  the  propriety  of  their  reference  to  the  same  High 
Commission;  but  he  suggests  that  the  Hi,<;h  Coinmissioiiers 
shall  consider  only  such  claims  of  this  description  as  maybe 
presented  by  the  Governments  of  the  respective  claimants  at 
an  early  day,  to  be  agreed  upon  by  the  Commissioners. 

1  have  the  honor  to  be,  with  the  highest  consideration,  sir, 
you  obedient  servant, 

Ha:milton  Fish. 

Sir  Edward  Thornton,  K.  V.  B.,  tCc. 


Extract  from  Protocol  XXXVI  of  conference  between  the 
llujh  Commissioners  on  the  part  of  the  United  States  ami 
the  IH(jh  Commissioners  on  the  part  of  Great  Britain. 

Washington,  May  4, 1S71. 

The  High  Commissioners  having  met,  the  ])rotocol  of  the 
conference  held  on  the  3d  of  ]May  was  read  and  conlirmed. 

The  High  Commissioners  then  proceeded  with  the  consid- 
eration of  the  nuitters  referred  to  them. 

The  statement  prepared  by  the  joint  protocolists,  in  accord- 
ance with  the  request  of  the  Joint  1 1  igli  Commissioners  at  the 
last  conference,  was  then  read,  as  follows: 

STATEMENTS. 

Articles  I  to  XI. 

At  the  conference  held  on  the  8th  of  March,  the  American 
Commissioners  stated  that  the  people  and  Government  of  the 
United  States  felt  that  they  had  sustained  a  great  wrong, 
and  that  great  injuries  and  losses  were  intilcted  upon  their 
commerce  and  tlieir  material  interests  by  the  course  ami  con- 
duct of  Great  Britain  during  the  recent  rebellion  in  the 


riijtcd  states 
her  cdlouies  d 
tlic  I  lilted  St 
not  desire  to  ( 
(,/  llic  Alahnni 
(!)■  (ifiiied,  or 
tioii  ot  force  i 
(ipfiatioiis  of' 
the  cajttui'e  fi 
wirli  tlieir  car 
//((■  iiiirsnit  of 
,if  (t  Innje  pa 
llritisli  flag,  i 
hiiuidtion  of  tl 
(list  III'  the  ica 
sltoivifl  that  (i 
iihsi'fninee  of 
tor  tlie  acts  o 
ilainis  for  the 
li;i(l  tlius  far  I 
lions  of  dolla 
to  be  greatly 
scntcd;  that 
till' pursuit  of 
iif  ilocernmeil 
aniiciible  set 
losses,  withoj 
ciitiuu  on  the 
being  made. 

Tli(^  Anieri 
hoped  tliat  til 
upon  record 
eminent  for  t 
acts  were  no 
the  .Joint  Hi{ 
should  be  p: 
satisfaction  < 

The  Britisl 
ernnient  con 
discharge  to 
her  by  the  ri 
liable  to  n\a 
sioned  by  tl 
Coniinission( 
Coiuniissiont 
si,uned  to  ci 
ii'onclads. 


CONDENSKD    PROTOCOLS. 


165 


Ciiitcd  Stiites;  that  wliat had  occurred  in  (Ireat  Britain  and 
her  ((tlonies  (Inriiijj-  that  i)eii(»<l  liad  given  rise  to  tVelinj^s  in 
tilt'  I  lilted  States  whieli  the  j)i'oi>Ie  of  tlie  Tnitcd  Status  did 
not  desire  to  <'herish  toward  Great  Britain;  tlmf  the  ItiHtortf 
of  llir  AlfihniiKi  ami  other  miificrs  ichich  had  hccii  fitted  oiti, 
III'  iiniH'd,  or  eqnipjied,  or  which  had  received  aufiinenta- 
tioii  of  Ibrce  in  (Ireat  Britain  or  in  lier.coh)nies.  and  of  the 
dlK  riitions  of  tiiose  vessels,  showed  extensive  din.'ct  h)ssesin 
tlif  captiue  and  destruction  of  a  hu'f>e  number  of  vessels 
with  tlieir  cargoes,  and  in  the  heart/  national  e.rjtenditttres  in 
the  jiKrsnit  of  the  eniiscrs  and  indireet  injitri/  in  the  transfer 
;/'  <(  larije  part  of  the  Amerieun  eommervial  marine  to  the 
liiilisli  l\ii<i,  in  the  enhaneed  payments  of  inxurnnee,  in  the  pro- 
Imijidtion  of  the  war,  (tnd  in  the  addition  of  a  larfje  sum  to  the 
ivnl  III'  tlie  icar  and  the  siq)pression  if  the  rebellion;  and  also 
shoivcil  that  (ireat  liritain,  hi/  reason  (f  failure  in  thi  proper 
iihscrrance  of  her  dnticH  an  a  neutral,  had  become  justly  liable 
till'  tlie  acts  of  those  cruisers  and  of  tlieir  tenders;  that  the 
iliiiins  for  tlie  loss  and  destruction  of  i)rivate  property  which 
had  tlins  far  been  presented  amounted  to  about  iburteen  mil- 
lions of  dollars,  without  interest,  which  amount  was  liable 
to  be  j^reaily  increased  by  claims  which  had  not  '  een  pre- 
sented; that  the  east  to  ichieh  the  Oorernment  had  been  put  in 
llir  pursuit  of  cruisers  couid  easily  be  aseertained  liy  certifieates 
iif  (invernment  aecountintj  offieers;  that  in  the  hope  of  an 
ainicable  settlement  no  estimate  was  made  of  the  indirect 
losses,  without  prejudice,  however,  to  the  right  to  indemnifl- 
I'litiuii  on  their  account  in  the  event  of  no  such  settlement 
beiiij;-  made. 

Tlie  American  Commissioners  further  stated  that  they 
hoiu'd  that  the  British  Commissioners  would  be  able  to  place 
111)011  record  an  expression  of  regret  by  Uer  Majesty's  Gov- 
oniiiient  for  the  depredations  committed  by  the  vessels  whose 
nets  were  now  under  discussion.  They  also  proposed  that 
tlu'  Joint  High  Commission  should  agree  upon  a  sum  which 
should  be  paid  by  Great  Britain  to  the  United  States,  in 
satisfaction  of  all  the  claims  and  the  interest  thereon. 

Tlie  British  Commissioners  replied  that  Her  Majesty's  Gov- 
ininient  could  not  admit  that  Great  Britain  had  failed  to 
dis(  hiuge  toward  the  United  States  the  duties  imposed  on 
lier  by  the  rules  of  international  law,  or  that  she  was  justly 
liable  to  make  good  to  the  United  States  the  losses  occa- 
sioned by  the  acts  of  the  cruisers  to  which  the  American 
Cmiiiiiissioners  had  referred.  They  reminded  the  American 
Coiiiinissioners  that  several  vessels,  suspected  of  being  de- 
m,i;ikh1  to  cruise  against  the  United  States,  including  two 
iioii  clads,  had  been  arrested  or  detained  by  the  British 


166 


CONDENSED    I'liOTOCOLS. 


Government,  and  tliattliatdoveininentliad  in  some  instances 
not  confined  itself  to  tlie  discbarge  of  international  ol)liga- 
tions,  liowever  widely  construed,  as,  for  instance,  wlieii  it 
acquired  at  a  {;freat  cost  to  the  country  the  control  of  tlie 
Anglo  Chinese  tiotilla,  which,  it  was  appreheiide<l,  inigiit  be 
used  against  the  United  States. 

They  added  that  although  (Ireat  Uritain  liad,  from  the 
beginning,  disavoweil  any  responsibility  for  the  acts  of  the 
Alabama  and  the  other  vessels,  she  had  already  shown  her 
willingness,  for  the  sake  of  the  maintenance  of  friendly  rela- 
tions with  the  United  States,  to  adopt  the  principle  of  arhitra- 
tioii,  provided  that  a  fitting  arbitrator  could  be  found,  and 
that  an  agreentent  could  be  come  to  as  to  the  jtoints  to  which 
arbitration  should  apjdy.  They  would,  therefore,  abstain 
from  replying  in  detail  to  the  statement  of  the  American 
Conuuissioners,  in  the  hope  that  the  necessity  for  entering 
upon  a  lengthened  controversy  might  be  obviated  by  the 
adoption  of  so  fair  a  mode  of  settlement  as  that  which  tliey 
were  instructed  to  propose;  and  they  ha''  now  to  repeat,  on 
behalf  of  their  Government,  the  offer  of  arbitration. 

The  American  Commissioners  expressed  their  regret  at 
this  decision  of  the  British  commissioners,  and  said  further 
that  they  could  not  consent  to  submit  the  (juestion  of  the 
liability  of  Iler  Majesty's  Government  to  arbitration  unless 
tlie  principles  whi<;li  should  govern  the  arl»itrator  in  the 
consideration  of  the  facts  could  be  first  agreed  upon. 

The  I»ritish  Conuuissioners  replied  that  they  had  no  au- 
thority to  agree  to  a  submission  of  these  claims  to  an  arbi- 
trator with  instructions  as  to  the  principles  which  should 
govern  him  in  the  consideration  of  them.  They  said  that 
they  should  be  willM.j;  Lo  fo'ssider  what  i)rinciple8  should  be 
adojtted  for  observance  in  future,  but  that  they  were  of 
opinion  that  the  best  mode  of  conducting  an  arbitration  was 
to  submit  the  facts  to  the  arbitrator,  and  leave  him  free  to 
decide  upon  them  after  hearing  such  arguments  as  might  be 
necessary. 

The  American  Commissioners  rei)lied  that  they  were  will- 
ing to  consider  what  pviuciplcs  should  be  laid  down  for 
observance  in  similar  cases  in  future,  with  the  understand- 
ing that  any  jjrinciples  that  should  be  agreed  u))on  should 
be  held  to  be  applicable  to  the  facts  in  respect  to  the  "Ala- 
bama" (daims. 

The  British  Connnissioners  replied  that  they  could  not 
admit  that  there  bad  been  any  violation  of  existing  princi- 
ples of  international  law,  and  that  their  instructions  did  not 
authorize  them  to  accede  to  a  ])roi)osal  for  laying  down  rules 
for  the  guidance  of  the  arbitrator,  but  that  tiiey  would  make 


CONDENSED    PKOTOCOLS. 


167 


taiices  I  known  t<»  tlieir  (Toveniineiit  tlie  vic^ws  of  tlie  Ann'rican  Com- 
i)l)liga-   I  iiiissjoiiiM's  oil  the  subject. 

ten  it   I     At   tlie   resjjeetive  ('oiiforenees  on    Maicli   1),  Miinsli    10^ 
of  tlie   I  Miui'li   IM,  and  Mni'cli  14,  tlie  •loiiit  Ili^ii  (Joininission  coii- 
S'lit  be   I  sidcK'd  the  form  of  tlie  declaration  of  priiuMples  or  rules 
ivliicli  tlio  Ainericaii  (Joiniiiissioiiers  desired  to  see  adopted 
for  riie  instruction  of  tlie  arbitrator  and  lai<l  down  for  ob- 
si'iviuice  by  the  two  (4overnnuMits  in  future. 

Ar  tlie  close  of  the  conference  of  the  14th  of  March  the 
Bririsli  Conniiisaioners  reserved  several  questions  for  the  coa- 
siilciation  of  their  (ioveriiinent. 

At  the  conference  on  the  otli  of  Ajiril  the  IJritishCoininis- 
<i()ii('rs  stated  that  they  were  instruiited  by  Iler  Majesty'n 
(idvciiiment  to  declare  that  Iler  Majesty's  Government  could 
not  iissent  to  the  proposed  rules  as  a  statement  of  principles 
(il  international  law  which  were  in  force  at  the  time  when  the 
Aiiibama  claims  arose,  but  that  I  ler  Majesty's  CJovernment,  in 
iinlcr  to  evince  its  desire  of  streiigtheninji'  the  friendly  rela- 
tions between  the  two  countries,  and  of  making  satisfactory 
liro\  isioii  for  the  future,  agreed  that  in  deciding  the  questions 
lit'tween  the  two  countries  arising  out  of  those  claims,  the 
arbitrator  should  assume  that  Her  INIajesty's  (lovernment 
liail  undertaken  to  act  upon  the  priiuiiples  set  forth  in  the 
lules  which  the  American  Commissioners  had  proposed,  viz: 

Tliat  a  neutral  government  is  bound  lirst,  to  use  due  dili- 
j^oiicc  to  ]irevent  the  fitting  out.  aruiinj,',  or  equipping,  within 
its  jurisdiction,  of  any  vessel  which  it  has  reasonable  ground 
to  l)elieve  is  intended  to  cruise  or  carry  on  war  against  a 
power  with  which  it  is  at  i)eace;  and  also  to  use  like  diligence 
to  pievent  the  departure  from  its  jurisdiction  of  any  vessel 
intended  to  cruise  or  carry  on  war  as  above,  such  vessel  hav- 
iiiu  i)eeii  sj^ecially  adapted,  in  whole  or  in  part,  within  such 
juiisiliction,  to  warlike  use. 

Secondly.  Not  to  permit  or  suffer  either  belligerent  to 
nial<('  use  of  its  ports  or  waters  as  the  base  of  iifival  opera- 
tions against  the  other,  or  for  the  purpose  of  the  renewal  or 
;iuf;iiieiitatiou  of  military  supplies  or  arms,  or  the  recruit- 
niciit  of  men. 

Tbirdly.  To  exercise  due  diligence  in  its  own  ports  or 
waters,  and  as  to  all  ])ersoiis  within  its  jurisdiction,  to  pi'e- 
veiii  any  violation  of  the  foregoing  obligations  and  duties. 

It  being  a  condition  of  this  undertaking  that  these  obliga- 
tions should  in  future  be  held  to  be  binding  iuternationally 
between  the  two  countries. 

It  was  also  settled  that  in  deciding  the  matters  submitted 
to  biin  the  .irbitrator  should  be  governed  by  the  foregoing 
viib's,  which  bad  been  agreed  upon  as  rules  to  be  taken  as 


168 


CONDKN^i:   •    l'R(  iTOCoLS. 

applicable  to  tii-ecatw.  :ni(l  iiy  isiicli  prJiiiMi)lvs  ofiiiterniitimuil 
law.  not  iiirniisisft-iit  ;  luTcwitk.  as  tlu;  arl)iU'at<)r  sliould 
determine  to  have  iMteii  applicable  to  ibe  ciise. 

Tlie  .loiiii  ilifiii  Cc+aimiKsion  tlieii  i)r(H'ee(le<l  tocoiiHider  tin 
Ibrni of  suitmiHsinii  aaid  tin-  uiauner  of  cuiistitutiu;:  a  tvibiiuiil 
of  anbitiatiou. 

Ar  tiie  roiiferciK-.-  o-  the  (ith,  Sth.  ittli.  Ibth.  and  12tli  oi 
April  till'. loiiit  llij:ii  <»!  niissioiH^onsiden'danddiseusHecithf 
form  of  siibuiisHioii.  nii»  .miner  of  the  award,  and  the  mode 
of  select  in;:  the  aibitv.ir     .-. 

The  American  ( 'oniiiii->ioii('iH, referriufj  tw  the-iiope  whicli 
they  hat!  expressed  on  tuc  -^th  of  3Iarch,  incjuired  whetlier 
the  ISritish  Coniniissjoneis  were  ])re})ared  to  phice  U|)oii 
record  aii  exjjressioii  m  re^xret  by  lier  Majesty's  (Tovern 
nient  for  the  deprcdatwiih  coniuiitted  by  tiie  vessels  wiiose 
acts  were  uawunwier  di!*cuf*H(oM  ;  and  the  Uritish  Coninii.s.sion 
ers  replie<l  tliatth+'y  were  iuutiiori/ed  to  express,  in  a  friendly 
spirit,  tile  rc<;ret  lelr  by  lii**r  .Majesty's  (iovernment  for  the 
esiiape.  ainler  whatever  ciri-iunstances,  of  the  Alabama  and 
other  vt^HHels  from  British  lorts,  and  for  the  depredations 
commitT***!  by  those  vessels. 

The  _ijiierican  Commissioiiers  accepted  this  expression  of 
rejjret  as  ^  <>ry  satisfactory  to  them,  and  as  a  token  of  kind- 
uesH.  aiid  said  that  they  felt  sure  it  woiiM  be  so  received  by 
th.«  Government  and  i)eoplc   it  the  United  States. 

M  tiiie  conference  on  the  ^ith  of  April  the  treaty  Articles 
I  to  XI  were  agreed  to. 


TESTIMONY    ] 


This  is  t'ou 
iMiultdii,  Lnn 
in  ls.')4-  and  ( 
rnitcil  iitiXtv 
ill  1S5II,  since 
ill  tlic  State 
iirt,  never  lu 
Anicrlca. 

Waircn,  t< 
(R.'conl,  94( 

().  He  is  an 
A.  No. 
().  Lives  in 
A.  Lives  in 
(,).  How  Ion 
A.  Well,  he 
().  lie  has  11 
A.  I  tiiink 
<).  Now,  in 

liiw.  is  he  not 
A,  Yes. 
(,».  He  has  1 
A.  Vcs. 
«,».  Vou  pri 

T,  li.  Coo])cr. 

l)iit  not  in  tht' 
A.  San  Fra 
().  How  lot 

is  your  broth 


iiiiiial 

illllllld 

lerilic 
Imiiai 


Appendix  II. 

TESTIMONY    BEARING    ON    RESIDENCE   AND   CITIZEN- 
SHIP. 

Thomas  H,  Cooper. 

This  is  touiid  in  Ills  exaniiniitioii:    Ho  wns  born  in  ij.,  isi^n.  lino 
llniiltitn,  Lancjisliire,  Enji'land  ;   that  lie  left   l*'^",U"liiii(l  j^'^j';,.^- ,1^^^^ 
ill  \x')\  and  caniu  to  New  York,  and  lias  lixcd  in  tlu-    itotii. 
riiit('(l  States  ever  since;   that  lie  went  to  Cahfornia 
ill  ls5i),  since  whicli  time  he  hascontinuonsly  resided 
ill  the  State  of  Cahfornia:   tliat  lie   is  a   British  snb- 
jict,  never  ha'in<i'  taken  <tnt  naturalization  jjapci's  in 
America. 

Warren,  testif\'in<»'   relative  to  Cooper's  residence 
(Record,  940,  !)41),  said: 

<i>.  lie  is  an  Ainericati  citizen,  is  he  not? 

A.  No. 

(j>.  Lives  in  San  Franci.sco?  K.,  itto,  Hue 

A.  Lives  in  San  Francisco.  67. 

<.>.  ilow  lonj:-  iias  Cooper  lived  in  San  Francisco? 

A.  Well,  lie  )ias  lived  there  a  luunber  of  years. 

<i>,  lie  has  lived  there  ubout  twenty-five  years,  has  he  not? 

A.  I  think  likely. 

•  ^  Now,  in  regard  to  Mr.  Cooper,  he  is  your  brother-in- P.,  951,  line 
law.  is  lie  not?  24. 

A.  Yes. 

'^  lie  lias  been  liviiip-  in  San  Francisco? 

A.   Vi-s. 

^}.  Vou  produced  the  other  day  a  power  of  attorney  of]}.,  isi;?,  line 
T.  11.  Coo])er.    A  similar  (iiiestion  was  asked  in  the  Thornton,     (55. 
'•lit  not  ill  these  cases.     Where  does  Cooper  live? 

A.  S;iii  r'raiieisco. 

<^  ilow  long  has  he  lived  there,  to  your  knowledge?    lie 
is  your  brother  inlaw,  is  he  not? 

1(59 


170 


TESTIMONY    ON    RESIDENCE    AND    CITIZENSHIP. 


TES 


A.  Yes.     I  expect  it  must  be  getting  close  on  thirty  years. 

if.  Do  you  HMneuilter  the  year  that  lie  went  tliere? 

A.  No;  1  do  not,  exactly,  only  hearinjr  him  talk.  I  thiiik 
it  must  have  been  pretty  near  thirty  years  ago  since  lie  went 
there. 

(^>.  Did  you  many  his  sister,  or  he  yours? 

A.  1  married  his  sister. 

Q.  Did  he  live  in  8au  Francisco  when  you  were  marrii'd.' 

A.  Yes. 

Q.  I^ow,  1  am  going  to  find  out  how  h)ng  ago  you  wore 
married.  Captain. 

A.  187.!. 

Q.  Was  Cooper  then  living  in  Sau  Francisco? 

A.  Yes. 

Q.  And  had  he  been  living  there  for  some  time? 

A.  Yes;  for  several  years. 

Andrciv  J.  JJecJitel. 

The   nflidavit   of  Andrew  J.  Beclitel,  sifyned  ami 
sworn  to  in  tlie  city  of"  A'^'otorin,  on  the  (ith  day  of 
K.,i!H)i',  line  July,  18'.'4,  was  read  into  the  Record  on  behalf  of 
tlie  United  States: 

I,  Andrew  J.  Bechtel,  of  the  city  of  Victoria,  in  the  Prov- 
ince of  IJritish  Columbia,  hotel  keeper,  make  oath  and  say 
as  follows: 

1st.  I  was  born  in  the  State  of  Ohio,  of  the  Tnited  States 
of  America,  and  I  am  the  brother  of  M.  X.  Bechtel,  deceased. 


20. 


^lufEx.No!      ^^1^'^  '1  certified  copy  of  tlu'  bill  of  sale  conveyiiio- 
4,     u.    s.  to   Bechtel   the   C'dji  of  San  JUcf/o,  togx'ther  with  ; 
1,  JO  ''   '  'affidavit  made  l)v  Bechtel  statino-  that  he  was  a  re.' 


m 
p.  49.  aiiuiaviT  iiuKie   o\    iic^ciiifi  siariiijji' iiiut   ne  was  a  re.si- 

dent   and  citizen  of  the  United    States   of  Aniericii, 
The  athdavit  is  as  follows: 


District  of  San  Francisco, 
Fort  of  fSan  Frdncisco. 

I,  John  A.  I'.echtel,  of  Auburn,  in  the  county  Placer  and 
State  of  California,  do  swear,  according  to  tlie  best  of  my 
knowledge  and  belief,  that  the  .sciiooner  called  the  Vi<ii  of 
iSan  J)ie(io,  of  San  Francrisco,  in  the  State  of  California,  is  of 
burden  4(>  iind  ,'„"„  tons,  and  was  built  at  San  Francisco,  in 
the  year  <ine  tliousand  eight  hundred  and  eightyouc;  that 
1  am  a  citizen  of  the  United  States;  tluit  .:  y  present  iisuiil 


llill't' 

)f  reside 

I'hiiM-r 

,  and  St 

vileo^ 

>Mer  of  t 

/.(Ml  of 

any  fore 

IlllSt. 

lOiilideiK 

[intlit> 

or  issue 

Sii 

)S''nbe( 

ISIKI 

(ilUMUT 

was  ( 

hano-ed 

Andrew  J 

liritiiin  : 

<.'• 

^Yhere  d 

\ 

in  \^icto 

<.>. 

How  Ion 

A. 

Al)Out  t 

<.>. 

1  believe 

A. 

Y"es. 

»>. 

And  hav 

A. 

Yes. 

Q. 

And  this 

veavs 

* 

'  A. 

Yes. 

<.>. 

What  In 

A. 

111  the  s 

<.>• 

How  Ion 

iiess- 

-about  1 

A. 

1  can't  s 

<.». 

About  t 

A. 

Aliout  t 

Q. 

What  w 

A. 

llotelb 

Q. 

What  w 

A. 

1  have  \ 

Q. 

Y(m  wei 

A. 

l''or  abo 

1 

f  was  1 

latii 

iii'  to  hif 

( 

n  cross- 

<v» 

1  )id  yoi 

yoii  received 

A 

.  1  laid  s 

TESTIMONY    ON    RESIDENCE    AND    CITIZENSHIP. 


171 


;.y  .vear.'<, 

'  think 
lie  went 


pliicc  lit"  residence  or  iU)ode  is  Auburn,  in  tlie  county  of 
i'hii'i'i,  and  State  of  California;  and  I  am  the  true  and 
^ll!e  (t^viicr  nt'  tlie  said  scliooner,  and  that  no  subject  or  oiti- 
ziii  of  any  foreign  power  is,  directly  or  indirectly,  by  way  of 
tiiist.  conlidence,  or  otherwise,  interested  therein,  or  in  the 
prolits  or  issues  thereof. 

-lonN  A,  Beciitel. 

Siil)s<'nl)o(l  and  sworn  to  the  9tli  (l.iv  of  February,  ^*>'*'4'^^ 

•  i»ii-*'t  1  line  i-to* 

IMHO  (incorrectly   i)nnte(l  ni  the  liecord   18i)6,  l)nt 
nils  clijuig-ed,  l)y  sti])nljition,  in  the  liecord,  to  1S90). 
Aiiih'ew  ,1.  Bechtel  was  called  t»n  l)ehalf  ot"  Great u.,ii5, line i 

I'lrirjiiii  : 

<.>.  Where  do  you  reside,  Mr.  Bechtel? 

A.  In  N'ictoria, 

i^t.  I  low  long  have  you  resided  in  Victoria? 

A.  About  twenty-three  years. 

<^  I  believe  you  are  nuuried  and  settled  down  here? 

A.  Yes. 

i).  And  liave  a  fannly  here?  ^ 

A.  Yes. 

<^  And  this  has  been  your  home  for  the  last  twenty-three 
veni'S '.' 
'  A.  Yes. 

<,'.  What  l>Msiness  are  you  now  in? 

A.  In  tlie  sealin<i,'  business. 

(^>.  How  long  have  you  been  *»ngaged  in  the  sealiJig  buai- 
iiess— about  how  long? 

A.  I  can't  say  exactly  as  to  months — over  three  years. 

<i>.  About  three  years,  you  mean? 

A.  About  three  years — longer. 

<i>.  What  was  your  business  before  that? 

A.  Hotel  business. 

<,>.  What  was  the  name  of  the  hotel? 

A.  1  have  kept  ditVerent  hotels. 

^>.  You  were  a  hotel  keeper  in  \ictoria  for  how  niiiny  years  ? 

A.  For  about  eighteen. 

Ilr  was  recall('(l,  hut  no  te.stiinony  was  given  re- ^',jgf "''  ^'"* 
latiiin'  to  his  residence  or  possessions  in  Victoria. 
*  Ml  cross-examination:  K.,  150. 

<v'.  l>i(l  you  have  any  stores  or  buildings  there  from  which 
yoii  received  rent? 
A.  I  had  some  cottages. 


112 


TESTIMONY    ON    RESIDENCE    AND    CITIZENSHIP. 


TES 


K.,   3!)ii, 
31. 


R.,  1.5f.<t, 
14, 


K.,_.it.^  hut  lied  ltd  wfis  recalled  for  ('ro.ss-exainniMtioii,  l)ut  iin 
testimony  wtis  li-iveii  neariiijx  upon  Ins  i-esidencc  m 
Vi<*toria  or  elsewhere. 

Rel'eriing   to  tlie  re<i"ister  of  the   ('iff/  of  Smi  .Dic/iu 
at  the  jtoi't  of  San  Francisco,  tlie  Connnissioner  dii 
i''"'the  j)art  of  the  United  States  said:   "That  is  not  a 
mere  declaration  of  citizenship,   hut  it  is  an  act  of 
citizenship  on  iiis  pai't." 
''"«'      William  Munsie,  on  cross-examination: 

Q.  Then  you  bought  the  ISan  Dietjo  for  liim,  did  you? 

A.  Well,  he  really  boufjht  her,  but  it  was  left  to  us  to  do 
the  business,  I  believe  his  boy  was  ill  at  the  time,  and  lie 
was  living  in  California.  His  instructions  to  us  were  to  buy 
the  vessel  for  him. 

R.,  iwii,  line  ''Pli^i  naturalizati(tn  ])apers  of  l^echtel  when  lie 
became  a  subject  of  Great  Ih'itain  were  filed  as  an 
exlnl)it  and  marked  Exhibit  No.  r2.S,  G.  1^.  claim 
No.  1.     Record,  198U*  hue  64.     (Exhibit,  p.  401.) 

Oath  of  allegiance. 

I,  .lohn  Andrew  Bechtel,  better  known  as  Andrew  .1. 
Bechtel,  do  sweav  that  in  the  period  of  eiyhteeu  years  pre- 
ceding this  date  I  have  resided  eighteen  years  in  the 
Dominion  of  Canada  with  intention  to  settle  therein,  with- 
out having  been  during  such  eighteen  years  a  stated  resi- 
dent of  any  foreign  couutry.     So  help  me  God. 

John  Andrew  Bechtel. 

Subscribed  and  sworn  to  the  7th  day  of  April,  1802, 

The  ceitiiicate  (^f  naturalization  recites  in  terms 
that  Bechtel  "has  duly  resided  in  Canada  for  a]>crio(l 
of  eiij'hteeu  years."  Tlie  United  States  claim  Hcclitci 
to  have  been  half  owner  (tf  Carolei/a  at  time  of  Heiziuc 
AujL>ust  1,  1S86,  half  owner  of  I'dthfixler  at  time  of 
seizure,  July  21),  ISS'J,  and  half  owner  of  Pafhftiukr 


at  time  of  "seizure, 


M; 


n-ch  21),  lS!iO 


It  is  in  evi 
xrii  .it'  the  U 
„t'  llt'cembei 

On  ihe  1(1 
iHit  liaviii<>M-( 
iiiM'  liini  to  b 

On  the  7t 
atlidiivit  ill  ■ 
snitcs  that  In 
tli;it  he  resid 

( )n  the  <St 
davit  iit  Vici 
,it'  the  Trinn 
United  Stat( 

That  I  am  i 

lie  make: 
( hi  the  2( 

alHdavit  in  ^ 

1.  the  unde 
ill  thi'  Provin 
declare  as  foi 

I  am  a  nati 
Breton,  in  tin 
-arliot'allegi 
lev.  1S7U,  I  (1 
iiatli  of  alieg 

On    the 
iiinde  afii<l:i 
(il-rain  the 
•>iiid: 

1.  the  nnd 

Caliunbia,  di 

I  am  a  n: 

the  county  t 

of  allegiauc 


l)Ut  llii 

lice  ill 

hlfjii, 

liei"  (111 
Hot  ;i 
act  u{ 


claiiii 


TESTIMONY    OX    KESIDENCK    AND    CITIZKN'SHIP. 
Jhd/irl  McLciitl. 


178 


It  is  in  cvidciicc  that  ho  became  a  natiiniHzed  citi- '■';j-,  ^z-'  '  ■  ^• 
zeiMif  the  United  States  ot"  America  ou  tlie  1st  da}' Ex.! p. litKt. 
,it"  December,  18S2. 

(Ill  tlie  Kith  of  October,  ISHC,  the  United  States '^'j,,';'^^' '"'« 
iidt  having-  conscMited,  ]\IcLeau  took  out  pajx-rs  declar- 
iiii^'  liiin  to  be  a  naturalized  citizen  ot"  Great  Britain. 

On  the  Tth  day  of  September,  18!)2,  he  made  an '^'^J^-^' "°® 
atlidavit  in  the  city  of   San  Franci^sco,  in  wliich  lie 
states  that  he  was  a  natnralize<l  American  citizen  and 
tli:it  he  resided  in  San  Francisco. 

On  the  (Sth  day  of  Ang'ust,  1SS9,  he  mad(}  an  afli- 
(liivit  jit  Victoria,  relating-  to  the  claim  for  the  seiznre 
of  the  Triumph  on  the  11th  day  of  July,  lS8!),  by  the 
I'nited  States  revenue  cutter  in  Bering-  Sea. 

Tliiit  I  am  master  and  part  owner  of  the  IJrifcish  schooner 
/V//oH/>//,  registered  at  the  port  of  Victoria,  British  Cohimbia. 

lie  makes  no  statement  as  to  his  resiflence. 
(hi  the  -Otli  of  October,  Daniel  McLean  made  an^.,  1955,  line 
iiHidavit  in  which  he  states  as  follows: 

1.  the  undersigned,  Daniel  McT.ean,  of  the  city  of  Victoria, 
111  till'  Province  of  British Coiumbia,  Canada,  master  mariner, 
(k'cliive  as  follows : 

I  iim  a  natural -horn  Britisih  subject,  born  at  Sidney,  Cape 
Bietoii,  in  the  Province  «>if  Nova  Scotia,  and  since  I  took  the 
•aril  (if  allegiance  r,o a I'oreigii  State — United  States — Novem- 
ber. 1S7!>,  I  did.  on  the  lOth  day  of  October,  l.S8(),  take  the 
until  I  if  allegiance  to  Her  Majesty. 

(»u    the   Kitii    day  of  November,    1887,   McLean 

;n;ide  affidavit  at  tlu*  port  of  Halifax,  Nova  Scotia,  to 

■  '■\\\\  the  reg'ister  of  the  Triuniphm  his  name.      He 

Slid: 

i.  tlio  undersigned,  Daniel  ]McLean,  of  Victoria,  iiritish 
Coiiiinbia,  declare  as  follows: 

1  am  a  natural-born  British  subject,  born  at  Sydney,  in 
the  county  of  Cape  Breton,  and  have  never  taken  the  oath 
of  allegiance  to  any  foreign  State. 


•6.i. 


174 


TESTIMONY    ON    RESIDKNCE    AND    CITIZENSHIP. 


^^'s '(•'\V,  "••      I^iiiiicl  McLean  wns  owiu'i' (»f  <»m'-t1iir(l  ot"  Tnimiil 
kx.Tti.       ill  tinu'  of  seizure,  .]iih'  11,  I881». 


A hu(tii((t'r  McLean. 

He  iK-^'ame   a  luituralized    citizen  of  the   United 
States  l)y  order  (►f  the  circuit  court  of  the  UiiittM] 
States,  district  of  Massacluisetts,  on  tlie  1st  <1mv  of 
Deceinl)ei-,  1882. 
E.  689.  ^^*^  siiik-d  out  of  tthe  port  of  San  Fnmcisco  (tn  tlic 

Matfi  FjIIiii  in  the  year  1 883,  and  was  enjj'a<j;"ed  as 
master  of  the  Favotir'iir  at  ^"ictoria  in  the  vear 
1S84. 

I'here  is  no  testimony  in  the  Kecord  tliat  Alexaii- 
E    «i   1     ^^^   McLean  ever  owned   any  |)ro])erty,  outside  of 
"(53.  vessel  ])ro})erty,  in  the  city  of  A'ictoria.     He  never 

had  a  ])ermanent  residence  there. 

Alexander  McJ^ean  tes^titied  on  cross-examination: 

Q.  And  where  did  you  go  to  then;  did  yoix  live  here? 
A.  1  lived  here  (in  Victoria)  from  1884  until  1889,  and  being 
back  and  forward  between  here  and  San  Francisco  at  times. 

'^riie  .'^liips  in  the  claims  in  which  ^IcI^ean  is  inter- 
ested were  the  Onward,  seized  on  tlie  2d  day  of 
August,  1880,  and  the  Farouyiic.  warned  from  ]k'ri".<;' 
Sea  Anj^-ust  2,  188<;. 


Alexander  Frank. 

Exs.^'r.  207-     Ak'xander  Frank  made  an  afh(h\vit  on  tlie  1st  day 
y-'-  of  February,  1 S88,  in  the  city  of  Victoria,  in  which  lie 

„     ^^.  ,.     i^'dd  he  was  an  "American  subieet." 

Lx.  209.  line        -  ^     r^    r<  i  •         .lx  i         jii  i       v  ^1 

i>,s.  Ir.  It.  Lrwynn,  Ins  attorney,  made  amtlavit  on  the 

1st  day  (tf  February,  1S8<S,  tliat  he  was  informed  and 
v<-rily  believed  that  Alexander  Frank  was  an  Ameri- 
can subject. 


50. 


TFSTIMONY    ON    RE8IDKNCE    AND    CITIZKNSniP.  175 

All  xMudiT  Fnink  testiiicd  uii  this  scmukI:  i{..i!i!ti. 

{).  \()U  an' iiu  Aiiieriitan  citizen? 
A.  I  uiu,  sir. 

lV;iiik  s\\(.r<-  tliat  at  the  tiiiu'  that  tlie  J/ilij  aiul  the ^^'j^^"*^'  ''°^ 
IHin  I:  hiinimi/d  were  re|>istcr(Ml  iii  the  name  of  Morris 
.M,,»  (wliich  date  is  November    10,   188S),  "tliat  he 
\\;is  all  Aniericaii  citizen." 

The  Record  dischtses  the  fact  tliat  Frank  had  l)Usi-]{.,iiiiHi,  line 
iicss  in  San    Francises*  about  the  time  of  the  seizure 
III  the   L/li/   and   the   JUdck   Didmond,  «^^ily  '^i^'l   -^^i- 
-list.  1 8S<J.' 

The  witness  was  asked: 

(^t.  Ill  November,  188.s,  were  you  a  resident  of  Victoria?     '^•'  i""-'''"*^' 

A.  I  believe  1  was.  I  am  not  quite  positive  about  the 
time,  I  went  to  San  I'^rancisco  either  the  latter  part  ol"  1888 
111  the  early  part  of  1889,  and  1  stayed  there  for  several 
months. 

(,•.  \{)\\  had  a  business  in  Victoria? 

A.  1  was  liquidatinjn  my  business  in  Victoria. 

(>>.  Had  you  started  in  the  new  business  in  San  Fran- 

risco  .' 

A,  1  became  a  partner  in  1S8!> — the  1st  of  January,  1  think, 
ISS!)  or  18!»0.  1  do  not  know  the  di  te  exactly.  It  was  not 
a  new  business,  but  an  old-established  business. 

i}.  And  you  liave  been  at  it  ever  since? 

.\.  !  have  been  at  it  ever  since. 

<,>.  And  you  can  not  tix  the  date  when  you  left  Victoria  for 
Sill!  i'raucisco.  I  do  not  mean  to  say  without  returning 
occasionally  lieref 

A.  i  returned  off  and  on  here  for  a  number  of  years. 

(i>.  Ueturued  for  liow  long? 

A.  Oil,  for  a  week,  or  two  weeks,  or  a  niontli  at  times. 

<.>.  ("oiild  you  state  approximately  the  date  when  this 
business  or  store  which  had  been  carried  on  iu  the  name  of 
(iiitiiiiin  .S:  Frank  was  ciosed? 

A.  [  could  not. 

Tlie  only  otlier  evidence  in  tlie  Record  bearinj*'  up(m 
tile  domicile  of  Alexander  Frank  is  in  liis  affidavit, 
printed  on  ])a<ie  210  of  Exliilnts,  whicli  was  made  on 


17(J 


TESTIMONY    ON    RESIDENCE    AND    CITIZENSHIP. 


the   iHt  (lay  of  November,   1S87,   at   Victoria,    llo 
said: 

1"  or  two  years  and  upwards  one  Jacob  Giitinan  liad,  until 
the  date  of  his  8ui)i)osed  death  licreinafter  mentioned,  been 
in  partnership  witli  nie  in  a  trade  or  business  carried  on  by 
us  at  Johnson  street,  in  the  said  city  of  Victoria,  tradiiij; 
under  the  name  or  styh)  of  Gutmau  &  Franli,  as  mercbauts 
and  Indian  traders. 

The  vessels  in  wliicli  Alexander  Frank  is  interested 
as  a  claimant  are  the  Alfred  Adams,  seized  on  the  lOtli 
of  July,  1887,  and  the  Black  Diamond,  seized  July  11, 
1889,  and  the  Lily,  seized  August  6,  188U. 


UNCERl 

Tlic    met 
iiroiiuscd  in 
iidiic  of  the 
til  111  of  any  i 
a  sc;ilin}i'  v<i 

The  atter 
til  tlic  statei 
Miini  Ellen 
iimr  iire  se 
usual  succe 
(li'iiosition, 

Scdiimf  a  V 
lire  .so  many 
iinotiier  with 
iminl)er.  Iti 
of  the  seal,  ai 
iilmij;-  the  coj 
known  vesse 
the  same  nu 
season  I  had 

It  is  the 
Itric'Hy  revi 
mill  point  ( 
"•iiiiilitions 
of  sate  invt 
lit'  chance. 

Scaling 
iHilO,  from 
nils  neces!- 
>^els    empl( 
scIk  loners 

B   S— 


UNCERTAIN   CHARACTER  OF  SEAL  HUNTING. 


Tlic  iHC'tliod  for  coinpiitinji'  iiii  cstiiiiiitcd  ciitcli, 
|iru|inso(l  i'l  the  opposiiio'  Ai'^^i'miicnt,  tiikos  into  jiccoiint 
iKMic  of  tlic  ('ontiii<j;('iici<'s  which  j)rev(Mit  tlic  ajjjjlic}!- 
tidii  n{'  any  nilt'  for  cah'uhitin;.)'  tho  probabk;  results  of 
;i  s(';inn<>'  v<iya}>'e. 

The  attention  of  tlie  lliji'li  ("onnnissioncrs  is  caUcd 
III  rlic  statements  of  Daniel  Mcljean,  fl/c  niastfr  of  the 
Miiiji  Ellen  iti  1S,S0',  tlie  o))erations  of  wliich  in  lliat 
iinif  are  selected  by  tlu^  claimants  as  showiuf^-  the 
iisiuil  success  of  a  sealing*"  schooner.  He  says  in  his 
(lc|iosition,  which  appears  in  the  Record: 

Scalim/  a  venture. — Tlic  conditions  for  a  successful  catch  H.,  I822,|line 
lire  8t)  many  that  while  one  vessel  may  take  a  great  many,  ^• 
aiiotlier  with  equally  as  large  a  crew  may  secure  only  a  small 
niiiiiher.  Itrequiresexperience,  a  careful  study  of  the  habits 
of  tlic  seal,  and  a  thorough  knowledge  of  their  route  of  travel 
iildiij;  the  coast  to  Beriug  Sea  to  secure  a  good  catch.  I  have 
known  vessels  to  leave  port  on  the  same  day  that  I  did,  with 
the  same  number  of  crew  and  boats,  and  at  the  end  of  the 
season  I  had  about  two  skins  to  their  one. 

It  is  the  pur})ose  of  this  portion  of  the  argument  to 
l)iictly  review  the  principal  features  of  seal  hunting 
iiml  point  out  more  in  detail  the  contingencies  and 
conditions  obtaining  which  remove  it  from  the  field 
iif  sjife  investment  and  surround  it  with  the  elements 
iif  chance.  , 

Scaling  as  carried  on  in  the  years  from  1886  to 
1X!I(),  from  the  ports  of  Victoria  and  San  Francisco, 
was  necessarily  hazardous  and  uncertain.  The  ves- 
sels employed  were  usually  small  second-hand 
>ili( toners  ranging   from    15    to    12.5  tons   burthen, 

B  s 12  m 


17.S 


UNCKIM'AIN'    (MIAKACTKK    OK    SKAL    UlINTINn. 


Ui,  tlS. 


tli»>ii;;li    tlic   (ii'<liii;ir\-  si/c    wjis    licrwccli    .")(•   iiml    Inc 
tolls. 

'riic  (l!iiiLi<'rs  iittciKhiiit  upon  tlir  n-ovm^c  ot'  1,5111) 
miles  to  j?ciMii;i'  Scji.  which  usiiiilly  (K-ciipicd  tVoiii 
toiirtccii  to  twenty  days,  ;ni(l  those  that  smitouikIimI 
the  opei'ations  in  the  sea,  to<:-ether  with  the  iincci- 
tainty  ot"  profit,  ne\ cr  induced  capital  to  invest  laijiclv 
lines  in  the  industry.  The  perils  ot'  a  Herin^i'  Sea  ci-iiisc 
were  rtM-onni/ed  hy  insurers  in  an  increase  of  the 
])reiniuni  i"e(piired  tor  \-essels  (dearin;^-  tor  Alaskan 
waters,  while  the  speculatiNC  character  of  the  occii- 
])ation  is  show  u  by  the  (dass  of  vessids  enj^a^'eil  in  it, 
and  also  hv  the  nuinlter  of  sealers  who  were  eni])l(>y<'(l 
u]»on  a  "lay;"  that  is,  an  allowance  of  a  certain  per 
cent  of  the  minil)er  of  skins  secured  in  lieu  of  wayes, 
the  crew  thus  entering-  into  the  speculation  of  the 


owner. 


These  small  sch(H)ner.s,  leavin<»'  the  port  of  Victoria 
ill  April,  May,  or  June,  mmlo  their  way  northward 
along'  the  western  coast  of  British  (Johimbia  uiid 
Ahiska  oi"  by  direct  cour.se  across  the  ocean  to  Uiiiniak 
Pass,  the  nearest  entrance  to  Bering  Sea.  The  ves- 
sels carried  either  w  hite  or  Indian  hunters,  the  major- 
ity having  the  latter,  in  the  years  from  188()  to  1889. 
The  boats  used  by  the  whites  each  contained  a 
hunter  armed  with  a  shotgun  or  rifle,  or  both,  a 
"boat  puller,"  and  a  "boat  steerer,"  the  latter  acting 
in  the  capacity  of  another  oarsman  when  not  apjiroacli- 
iiig  a  seal.  When  canoes  were  employed,  each  was 
manned  by  two  Indians,  one  to  paddle  and  the  other 
to  strike  the  animal  with  a  casting  spear.  It  is  ap- 
parent that  wdieii  searching  for  seals  a  boat  had  a 
great  advantage  over  a  canoe  or  a  boat  with  but  one 
oarsman,  as  it  possessed  twice  the  propelling  power 
of  the  latter. 

When  the  weather  had  become  sufficiently  modi- 
fied, a  vessel  with  white  hunters  low'ered  its  boats, 


to  secure 


INCHIM'AIN    t  1IA1;A(  Tl.lJ    OF    nI.AI,    lllNriN(i, 


17 'J 


.11 . 


ill. 


wliicli  took  tlicii-  course  to  tlic  w  iiHlwiird,  tin-  limitcrs ''•„.''"■'*•  '''"' 

ki(|iiiiL:'ii  sli;ir|i  lookout  tor  tlic  iiiiinuils.jmd  soiiictiino 

'j:ii\\\'j;  l<ior  1")  iiiilcs  in  tlicir  sciii'di.  I'or  tin-  l)o;it>  ;irr 

ntt(  II  Io\V('1'(m1  wlicli  no  sciils  ;iiT  ill  siiilit.     W'licli  ;i  scill 

u,i>  seen,  liillcli  (lc|ifll<l('(l  upoll  the  luilitcr's  cxpfriclicc 

iiimI  skill. 

(';i|»l!iiii  McLcMii  ill  his  cxaiiiiiiiitioii  \v;is  jiskcd  iis  i;. 
tn  tlic  proper  \vji\' of' iipjiroiicliiii;^' ;i  sesil.  He  replied. 
•  Tliiit  deiK'iids  on  the  JU'tJon  of  the  st-jil  nt  the  time. 
All  sciils  do  not  jiet  .dike.  Some  hunters  cjiii  tell 
lidw  to  Mpprojich  the  seiil :  the\'  ciiii  tell,  when  they 
>(•(•  liiin  !i  certiiin  distiince  «»tV,  whether  they  iire  ;4'oin;^' 
to  ui't  near  to  him  and  shoot  him:  tell  hy  his  actions 
wlicther  he  is  asleep  or  awake."  Ittlieseal  a])i)eared 
tu  he  awake,  the  hunter  used  his  rifle  at  a  ran^c  of  (10 
to  loO  \ards.  'Die  shotji'un  was  <>enerallv  used  when 
the  animal  was  asleep,  and  could  he  more  nearly  ap- 
]ir(>nche<l.  If  the  shot  was  succetssful,  the  loii^-han- 
illcd  oatf' carried  in  tlie  boat  was  used  in  an  (Mideavor 
to  secure  the  ra])idly  sinking-  })ody.  If  not  killed 
(Hitri^ht,  tlie  hunter  continued  firin<>',  in  some  in- 
stiiiices  a  dozen  shots  bein<i' fired  at  a  "cri])ple,"  which 
eventually  was  lost.  Throuj^li  some  jjoculiar  instin(*t, 
the  animal  when  wounded  starts  directly  to  tlie  wind- 
\y;\v(\.  In  the  })ursuit  of  a  crippled  seal,  the  advan- 
taiic  which  a  boat  with  two  "])ullers"  had  over  a  canoe 
with  but  one  is  apj)arent. 

If  the  schooner  carried  Indian  hunters  and  canoes 
instead  of  boats,  the  method  of  hunting-  was  ditlerent. 
Instead  of  always  ])roceeding-  to  the  windward,  the 
ciUKK's  went  in  (litierent  directions,  seldom  extendinjj' 
their  operations  over  three  or  four  miles  from  the 
schooner.  It  is  first  to  be  noted,  therefore,  that  the 
urea  covered  by  a  vessel  manned  with  canoes  was 
niiich  more  limited  than  when  boats  with  white  hunt- 
ers were  employed.  As  soon  as  a  seal  was  sighted, 
1111(1  it  was  determined  that  he  was  asleep,  the  canoe. 


^ 


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Photographic 

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^.V 


23  WKT  MAIN  STRIIT 

WnSTIR.N.Y.  145S0 

(716)  •72-*503 


<" 


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180 


UNCicuTAiN  chakactp:r  of  seal  hunting. 


if  to  tilt'  wiiidwanl  of  the  aninuil,  ciirhMl  about  and 
atleiiUK'd  to  a])j)roacli  liiin  from  tlio  lee.  If  successful, 
the  seal  not  awakiu<>-,  the  spear  was  cast  wlieu  the 
boat  was  within  25  or  30  feet.  If  sutticieiitly  skillful 
to  strike  the  snuiU,  moving'  mark,  the  animal  was 
(bawn  to  the  can(te  by  means  of  a  cord  attached  to 
the  sj)ear  head.  If,  however,  the  animal  was  awakened 
by  the  approach  of  the  canoe,  there  was  little  probji- 
bility  of  his  bein<>'  secure<l,  as  he  wcmld  swim  away 
at  a  rate  oi'  speed  whicli  precluded  pursuit. 

From  the  diti'ereut  way  in  which  canoes  and  boats 
started  out,  it  is  apparent  that  boats  would  have  an 
advantajie,  as  the  seal  has  an  acute  sense  of  smell,  and 
R..  539,  line  can  detect  the  jtresence  of  a  hunter  at  a  distance  of 
''"■  three  or  four  hundred  yards      A  canoe  with  Indian 

hunters  was  at  a  further  disadvanta<>e  l)ecause  the 
seals  taken  by  it  were  necessarily  "  sleejiers,"  as 
the  use  of  the  s])ear  necessitated  a  close  apiu'oach  to 
insure  a  successful  cast. 

The  I  n<lians  who  came  from  tribes  alon«>' the  west  coast 

of  Vancouver  Island  Avere  i«>norant  and  superstitious. 

Several  instances  aj)pear  in  the  Record  (which  will 

be  given  more  in  detail  hereafter)  where  a  sealing 

voyaj»e  was  brought  to  an  abrupt  end  through  some 

K.,  307,  line  superstition  or  ignorant  fancy  of  the  Indian  hunters 

line  'so- arising  from  the  sickness  of  one  of  their  number,  the 

1405 ''"line '****'^  of  R  caiioe,  a  prolonged  season  of  rough  weather, 

52;'    7.57,  the  stubbom  determination  to  return  home,  or  some 

i^ig"  *  J '^^j  other  cause  which  only  the  Indians  themselves  could 

37.  explain. 

Another  peculiarity  of  the  Indian  hunters  was  that 
R.,  308,  line  they  Were  unwilling  to  start  sealing  when  tiiere  was 
"~  ^^^S^y  weather.     As  fogs  are  so  frequent  in  Bering 

Sea,  it  is  apparent  that  this  fear  or  8U})erstition  of  the 
Indians  nmst  have  tended  to  greatly  modify  their 
efficiency  and  to  reduce  their  value  as  seal  hunters 
when  compared  with  white  men. 


22. 


mm 


UNCKRTAIN    (mARACTEll    OF    JSKAL    HUNTING. 

It"  tlic  ('(mteiitioii  made  on  the  pait  of"  ( iroat  Hritain 
is  tiiic,  tliat  tlie  locality  of  seals  at  sea  was  liinite<l 
to  ii  coinparativcly  small  area,  another  important 
(■(Hitinjiency  is  that  eanoes  and  boats  from  another 
schooner  cansed  the  seals  to  become  wild  and  ditticnlt 
of  approach.  The  variations  which  are  sn<:«-;iested  l)y 
tlie  tendency  of  the  animals  to  be  disturbed  by  the 
jircsence  of  a  number  of  hunters  in  the  vicinity  cause 
the  problem  of  determininj^-  the  chances  of  securin<^' 
scjils  still  more  involved  and  diftictdt  of  solution. 

The  fo"e<>oing'  review  of  the  methods  adopted  by 
wliite  and  Indian  hunters,  res])ectively,  has  been 
hjised  on  the  assumption  that  they  found  seals.  If, 
however,  their  search  was  unsuccessful,  they  returned 
to  the  schooner,  and  a  new  locality  20,  50,  or  100 
miles  away  was  sought  and  the  hunters  again  sent  out. 

It  is  evident  from  the  hazard  which  obtained  in 
sealing'  and  the  smallness  of  the  boats  and  canoes 
used  that  the  weather  became  an  important  factor  in 
(l(!termining  the  success  or  failure  of  the  voyage. 
There  is,  j)erhaps,  no  body  of  water  on  the  face  of 
tJK*  globe  wliere  the  meteorological  conditions  are 
more  unfavorable  for  fair  weather  than  Berinir  Sea. 


181 


K.,  310,  line 
54. 


Ciise  of  U.  8. 
Am.  Rep., 
vol.2,  p.  90. 
C  o  n  n  t  e  r 
Case  of 
G.  H.  Am. 
Hep. ,  vol. 
8,  p.  517. 


Fogs  were  of  daily  occurrence,  and  often,  as  is  R.,  nsi,  line 

38 :  see  itlso 


stilted  by  Captain  Meyer,  the  forenoon  might  1)6  clear 
and  favorable  for  hunting,  while  the  afternoon  brought 
a  fog  so  dense  that  it  was  im])os8ible  to  see  the  length 
of  the  vessel.  These  fog.s  not  only  prevented  suc- 
cessful hunting,  but  because  of  them  many  boats  and 
canoes  were  lost  Several  instances  api»ear  in  the 
l\('('ord  where  hunters  were  lost,  and  this  danger  was 
pel  haps  the  chief  cause  Avhy  the  Indian  hunters  feared 
to  go  far  from  the  schocmer.  Besides  the  frec|uency 
of  fog,  it  would  a))pear  that  the  prevailing*  condition 
i»f  the  weather  in  Bering  Sea  was  such  as  to  keep  the 
water  rough  and  dangerous  for  canoe  and  boat  and 
cvtii  for  the  scluxmer.     This  fact  often  prevented  the 


log  books 
in  e  V  i  - 
tlt-nce. 


R.,  150,  line 
25;615,liue 
3;H71,  line 
.SO. 


'i.  ! 


ffi-M 


182 


UNCERTAIN    CMIARACTElt    OF    SEAL    HUNTING. 


liuntcrs  Itomi  jioiii^'  out  Jiiid  luul  a  iniitcriiil  etf'oct  inum 
tlu'ir  iiuirksiniiiislii|). 

Jolm  CJotsfonl,  csiIKmI  as  a  witness  by  the  United 
States,  well  cxpivsse*!  the  (lirticulty  ot'tlie  Inniter  when 
the  sea  was  in  motion: 

R..  380,  line  Q.  Do  you  think  it  nearly  as  dirticiilt  to  slioot  a  ses'l  asleep 
»>7.  on  the  water  as  to  shoot  a  duck  tlying  with  a  ritle;  which  do 

you  think  it  would  be  harder? 

A.  I  think  about  the  same  on  the  water,  because  yon  have 
the  double  motion,  but  I  think  the  bird  would  be  the  hardest 
of  the  two.  At  least,  I  am  not  so  well  accustomed  to  shoot 
birds  as  1  am  seals ;  therefore,  I  think  birds  would  be  the 
hardest  of  the  two. 

A<»ain,  U})on  the  same  subject,  he  says: 

R.,  381,  Hue  jf  ^  man  is  rot  accustomed  to  a  boat  or  canoe,  it  is  a  tick- 
^^'  lish  thing,  and  a  man  can't  handle  a  gun  very  well. 

The  prevalence  of  stormy  weather  and  chanj^es  of 
wind  and  fo<^s  are  amonj^  tlie  priiu'ipal  conting^encies 
which  make  seal  l)untin«r  uncertain.  It  is  but  neces- 
'  '  sary  to  examine  the  evidence,  where  a  detailed  state- 
ment of  the  daily  operations  of  different  vessels  are 
j^iven,  to  show  how  frefpient  were  the  storms  which 
swept  across  Bering-  Sea,  althoug-h  in  many  cases  they 
were  not  jjeneral,  but  local  in  t  haracter.     For  exam- 

B.,  254,  line  pie,  the  Mavjf  Elleu,  used  as  the  typical  vessel  by 
(Ireat  liritain  for  the  purpose  of  computinj^  a  "prob- 
able catch,"  was  in  Jiering-  Sea  in  August,  1H86, 
twentv-nine  days,  durina-  which  time  she  had  fifteen 
days  of  weather  so  roug-h  it  was  impossible  to  lower 

R.,  109S,  line  a  boat.  The  W.  P.  Sai/irnrd  during-  tw^enty-four  days 
•^  of  the  same  month   had  but  eleven  in   which  her 

Am.  Ke  p.,  canoes  could  be  lowered.  The  Alfred  Adams  hi  1887 
543."  "'  *'  ^vas  in  the  Sea  for  thirty  days,  during- which  time  she 

R.^  702,  lino  lowered  but  fourteen.  The  Triumph  in  1888  was  in 
the  Sea  for  a  period  of  forty-five  days,  during  whicli 
time  there  were  but  seventeen  when  she  was  able  to 

R.,  60«i,  line  lower  her  canoe.s.  The  same  vessel  in  1890,  with 
white  hunters,  who,  not  being  iiiHuenced  by  fear  of 


33. 


24. 


UNCERTAIN    CHARACTER    OF    SEAL    HUNTING. 


183 


((•<:>.  it  is  to  bo  presuiued,  lowered  in  weatlier  which 
wdiilil  have  })revente(l  Indian  hunters  ^'roin  seahnj;-, 
\v;is  ill  tlie  Sea  forty-two  days,  and  in  tiiat  tinu^  liad 
hilt  lit'teen  which  were  nol;  too  untavoralde  tor  her 
Ik  lilts  to  be  used. 

I'hcre  is  abundaiit  testimony  by  witnesses  pro- 
duced on  behalf  of  Great  Hritain  that  a  canoe  or  boat 
is  lowered  whenever  the  weather  is  such  that  it  can 
live.  It  is  apparent  how  inclement  the  weather  and 
how  rough  the  sea  north  of  the  Aleutian  chain.  These 
(•oiiditions  also  limited  the  success  of  huntin<>by  hav- 
iii<>'  a  marked  influence  upon  the  seals  themselves, 
if  the  weather  was  stormy,  it  was  impossible  for  the 
stills  to  sleep,  and  if  awake  all  witnesses  a<^ree  that 
the  difficulty  of  securing^  them  was  larjii-ely  increased, 
w  liile  for  Indian  hunters  it  was  practically  impossible. 
On  tlie  other  hand,  after  what  may  be  termed  for  that 
rcffion  a  long  period  of  quiet  weather,  when  there  had 
liecii  oj)})ortunity  to  sleep,  the  seals  were  restless. 
A<>ain,  if  the  rain  began  while  the  sea  was  quiet,  they 
were  aroused  by  it,  and  the  difficulties  of  the  hunters 
were  increased. 

Atmospheric  changes  tend  to  affect  the  seals  and 
to  cause  them  to  be  wakeful  and  alert.  There  are  in 
their  natures  some  peculiarities  as  yet  unexplained, 
and  perhaps  unexplainable,  which  caused  them  to  be 
iu(»used  when  the  hunters  expected  to  find  them  sleep- 
iiij:.  Hunger  is  another  cause  of  restlessness,  for  when 
seeking  its  food,  the  seal  is  in  constant  motion,  diving, 
leaping,  and  forming  a  most  difficult  mark  for  a  Ininter. 

From  the  20th  to  the  25th  of  August  the  gales, 
liecoiuing  more  frequent  and  increasing  in  intensity, 
('omj)elled  the  cessation  of  all  profitable  seal  hunting. 

The  tonnage  of  the  schooner  employed  in  seal- 
tiiking  materially  affected  the  determination  of  its 
season.  It  is  to  be  })resuraed,  and  the  Recoid  con- 
taii  <  evidence  to  sustain  the  presumj)tion,  that  the 


184 


UNCEKTAIN    CHARACTER    OF    SEAL    HUNTING. 


P..209. 


master  of  a  small  vessel,  at  tlie  first  sijius  of  continued 
])a(l  weather,  ceased  operations  and  started  toward 
the  Ahnitian   Passes. 

Havinjisuinniarized  brief!  v  the  contino-encies  which 
particularly  aj)pertaiu  t<»  the  hunters  and  the  seals,  it 
is  ])roposed  to  examine  the  other  conditions  which 
tend  to  modify  the  results  of  a  sealin*»-  voyaj^e,  and 
to  place  the  question  of  its  jn'ofitubleness  beyond 
leji'itimate  speculation. 

It  is  a])parent,  ccmsiderinji^  the  class  of  men  who 
were  employed  as  seamen  and  hunters  upon  sealing 
vessels,  and  eH])ecially  when  the  latter  were  Indians, 
ig-norant  and  difficult  of  (control,  that  the  chsir- 
acter  and  experience  of  the  captain  became  an 
important  factor  in  determininjjf  the  success  of 
the  ciiiise.  Mutinous,  willfid,  and  superstitious,  an 
Indian  crew  demanded  exj)erienced  men  to  man- 
age them.  The  selection  of  hunters,  either  Indians 
or  "whites,"  so  important  to  the  success  of  the 
voyage,  depended  largely  upon  the  knowledge 
and  experience  of  the  master.  In  Bering  Sea  his 
sagacity  in  determining  from  observation  whether  it 
was  ])robable  or  not  that  seals  were  sufficiently  abun- 
dant in  the  vicinity  to  warrant  the  boats  or  canoes 
being  lowered,  was  important  in  determining  the 
mimber  of  the  vessel's  (^atch. 

Another  modification  which  affected  the  results 
obtained  Avas  "luck."  That  there  is  any  certainty  of 
finding  seals  in  sufficient  number  to  insure  a  profitable 
voyage,  or  any  locality  where  seals  may  be  always 
found,  is  denied  by  the  United  States,  and  has  been 
discussed  in  that  ])oi*tion  of  this  argument  which  deals 
with  the  so-called  "sealing  grounds." 

Havino-  considered  the  conditions  and  chances 
which  nuike  uncertain  the  success  of  a  sealing  voy- 
age in  Bering  Sea,  it  is  proposed  to  refer  to  the 
evidence  relied  ujjon  for  the  statements  made,  classi- 
fying the  testimony  as   far   as    })ossible   under   the 


UNr-ejRTAIN   CHARACTER    OP    SEAL    HUNTING. 


18-) 


heiids  int(»  wliicii  the  subject  unturallv  divides  itself. 

Tlic  witnesses  C^Mpt.  Alexander  >(('Lean,  Charles 
K.  l»n\  noi',  and  K,  P.  Miner,  witnesses  sworn  on  he- 
liiilt  ot"  the  Tnited  States,  toiiether  with  Mr.  Alexan- 
der, ot"  the  United  States  Fish  (\)nnnission,  have  j»iven 
cvidcMce  s«»  eon»])lete  and  eoinprehensive  that  it  is 
ik'ciiied  advisable  to  insert  their  statements  as  a  whole, 
lilt  rcK-  annotsitin"-  the  testimony. 

The  examination  ot"Ca})tain  McLean  upon  this  sul)- 
jcct  is  as  follows: 

(^.  Will  you  please  tell  us,  as  to  the  large  catches  of  seals,  R.,  »22,  lino 
what  is  the  condition  of  seals  in  these  large  catches;  are,.^'^-..-  i- 
they  rnnniug  or  asleep?  *  ZtlT"" 

A.  Mostly  asleep. 

if.  Do  you  know  of  any  large  catches  being  made  of  run- 
niiifj  seals — seals  aiwake,  we  will  say? 

A.  They  kill  a  good  many  seal  that  are  awake. 

(^  ^Vliat  are  the  chances  of  losing  an  awakened  seal? 

A.  There  are  a  good  many  chances. 

Q.  I  suppose  a  sleeping  seal  you  come  up  upon  very  close, 
so  they  can  be  gafted  before  sin  king  f 

A.  Yes;  sometimes,  and  sometimes  they  get  away  after  Wounded 
being  shot.  seals. 

Q.  Kven  a  8'"r»oing  seal? 

\.  Yes,  sir. 

(f.  And  if  the  seals  are  awake,  is  the  distance  longer  from 
which  you  must  shoot  ? 

A.  Yes,  sir;  but  sometimes  you  get  a  chance  shot  when 
tliey  are  very  close  to  the  boat. 

(}.  That  is  rather  exceptional,  is  it  not? 

A.  Very  rare. 

Q.  Now  suppose  there  are  an  abundance  of  seals  in  the 
sea  at  the  place  where  you  are,  in  your  shij)  or  schooner, 
does  it  follow  that  merely  beitause  the  seals  are  there  you 
will  get  them? 

A.  Xo,  sir. 

().  Do  you  know  in  the  matter  of  sealing  whether  the  Difliculty  of 
scent  of  your  approach  has  anything  to  do  with  awakening    npproach. 
the  seals? 

A.  Oh,  yes. 

<i>.  How  far  will  they  scent  the  approach  of  a  man,  in  your 
experience? 

A.  They  can  scent  a  man  or  a  boat  further  than  they  can 
see. 


180 


I'NCKUTAIN    CIIAKACTKK    OK    SKAL    lfUXTIN(}. 


Direction  of     Q.  So  tliiit  ill  iipin'osK.'hiiig  (loes  the  direction  of  the  wiud 
tiie  wind.   ]^.^yQ  anytiiiii}?  to  do  witli  it? 

A.  Yes,  sir. 

Q.  And  how  do  yoii  approach,  \Aiien  yoii  can  do  it,  in 
linntinj;  for  seals? 

A.  (leneraliy  approjicli   from   tlie   leeward.     If  they  up- 
l)roach  from  the  windward   sometimes  they  have  to  tnkc 
chances. 
Chnneeot  «8-     (^.  What  is  the  effect,  if  they  note  the  approach  of  man, 
*'*'"'•  upon  the  seal  herd  ? 

A.  They  will  wake  and  leave. 

Q.  How  fast  will  a  seal  make  way  to  escape? 

A.  Well,  it  is  pretty  hard  to  say.  They  can  travel  fast 
for  a  short  distance. 

Q.  And  what  average  rate  will  they  keep  up? 

A.  Well,  if  they  want  to,  they  can  go  faster  than  a  boat. 

Q.  And  keep  it  up  all  day? 

A.  Not  all  day;  no,  sir. 

Q.  Their  food  supply  is  fish,  is  it  not? 

A.  Yes,  sir. 

Q.  Do  you  find  fish  in  their  stomachs  ? 

A.  Yes  sir. 

Q.  And'  what  sort  of  flsh  ? 

A.  Well,  there  is  salmon  and  different  kinds  of  small. 

Q.  They  catch  them  in  the  Sea? 

A.  Yes,  sir. 
Proximity  of     Q.  Now,  the  passing  of  other  boats,  and  the  use  of  guns, 
othtr  ves-  what  effect  does  that  have  upon  the  school,  if  you  find  them! 

A.  If  there  is  much  shooting  going  on  it  makes  them 
wilder.. 

Q.  If  another  ship  has  jiassed  over  or  shooting  is  going  on 
they  are  awakened  ? 

A.  Yes,  sir;  if  vessels  are  around  they  get  wild. 

Q.  If  they  get  wild  can  you  get  theuj? 

A.  Some,  but  not  as  many  as  if  they  had  not  been 
frightened. 

Q.  And  I  think  you  have  already  stated  that  where  they 
are  already  awakened,  and  shot  at  a  distance,  there  is  dan- 
ger of  losing  them? 

A.  Yes,  sir;  sometimes  they  get  away  from  new  men  after 
being  shot. 

Q.  And  they  will  sink? 

A.  Well,  they  get  away,  and  i^robably  they  may  die  after- 
wards. 

Q.  What  effect  has  rain  upon  the  seals  when  you  find 
where  they  are — heavy  rain  ? 

A.  Well,  heavy  rain  disturbs  them;  it  depends  on  the 


sels. 


Chance  of  es 
fftpe. 


Ruin. 


UNCERTAIN    CHARACTKK    OK    SKAL    HIINTINO. 


1S7 


Proximity  of 
othtTSoiilH. 


ExjusritMicw 
of  hunter. 


Iwiatlicr  tliat  they  htul  befort'  tlui  rain  caiiie.     If  it  has  bt't'ii 

line  wcathcf,  it  will  (listurb  them  more;  they  will  not  rest  so 
[well.    If  it  had  been  blowiiij;  before  the  rain  they  will  sleep 
inctiy  well. 

{}.  Does  the  awakeniufi'  of  a  few  of  the  seals,  the  distnrb- 
liiiiceola  few,  tend  to  awaken  the  others? 

A.  Well,  tiiat  depends  on  the  distance  they  are  apart. 

(.).  Altlioii;;h  »  man  may  be  a  i^ood  shot  at  a  mark,  or  shoot- 
in;,' >;iim(!  on  land,  does  the  (luestion  of  the  experience  of  a 
niiiii  ill  hnntin^  seals  have  anything  to  do  with  the  nnmber 

(' ifpr.H  when  life  finds  seals? 

A.  Ves. 

{}.  In  what  way? 

A.  In  the  way  he  approaches  a  seal  before  he  shoots  him. 

{).  (live  the  Commissioners  some  idea  of  the  way. 

A.  All  seals  don't  act  alike;  some  act  dift'erent.  A  man 
liiis  ;ior  to  have  considerable  experience.  It  takes  prob- 
iilily  tliree  or  four  months  before  he  understands  how  to 
approach  a  seal  properly. 

(^  And  what  is  the  proper  way,  from  your  experience,  to 
apiu'oach  a  seal  ? 

A.  That  depends  on  the  action  of  the  seal  at  the  time;  all 
seals  don't  act  alike.  Some  hunters  can  tell  how  to  approach 
till'  seal;  they  can  tell  when  they  see  him  a  certain  distance 
ort'  whether  they  are  going  to  get  near  to  him  to  shoot  hira; 
ti'll  by  his  actions  whether  he  is  asleep  or  awake. 

Q.  So  that  determines  the  distance  you  will  go  near  him? 

A.  Yes. 

().  And  of  course  if  you  shoot  him  at  a  long  distance  you**  t^ucef     " 
run  the  danger  of  losing  him  entirely? 

A.  Dependsonhowyou  shoot  him.  If  he  is  badly  wounded, 
you  may  get  him. 

i).  Now,  when  you  are  where  the  seals  are,  what  effect  does    ®''*''*"'- 
tlie  weather  have  upon  the  seals,  even  if  your  boats  will  live 
ill  t lie  sea? 

A.  Well,  if  it  had  been  tine  weather  and  the  seals  were 
rested  i)retty  well,  and  if  there  was  bad  weather  approaching 
tlie  seals  get  I'estless. 

Q.  The  coming  storm  makes  them  restless  i 

A.  Yes,  sir. 

<k>.  That  is  a  modification  of  your  chances  to  get  sejils? 

A.  Yes,  sir. 

<i>.  And  what  is  the  habit  of  the  seal  when  he  becomes  wild 
befdie  a  storm;  how  does  he  appear  differently  when  not  dis- 
tiirljfd  ? 

A.  Well,  he  moves. 

(i>.  Has  the  experience  of  the  captain  of  a  vessel  anything  '^f  y^^lt^j"® 
to  (1(»  with  the  size  of  the  catch  for  the  season? 


of  captain. 


1H8 


INCHRTAIN    CUAKACTEU    OF    SEAL    HUNTTNO. 


R.,  524,  line 
H5. 


A.  That  is  vt'ry  liiinl  to  say. 

(J>.  Tlie  exju'iiiMiw  of  the  captain  in  sealiii}>  ? 

A.  I  do  not  wish  to  state  tiiat. 

Q.  Is  tiiat  because  of  your  modesty  ? 

A.  No;  i  have  been  at  sea  a  good  deal 

i).  Hut  I  would  like  to  know.     Let  nie  see;  has  tlic  tap- 
tain's  Jiulj^nient.  I>ecause  of  his  experience  in  seal  JMuitiii;;,| 
auytliiu;--  to  do  with  tlie  way  the  vessel  should  approach  tiic 
seal  herd  ? 

A.  It  has:  he  will  have  the  vessel  properly  equipped  ami] 
a  good  crew  of  men  aboard. 

Q.  Mas  the  selection  of  the  crew  anything  to  do  with  itf 

A.  It  has  a  great  deal. 

Cjiptaiu  Hay"<n''s  testinnmy  is  as  follows: 

Q.  What  part  of  the  sea  did  you  hunt  in  in  these  various  | 
years  ? 

A.  No  particular  part;  wherever  I  found  seals. 
Q.  Did  you  go  sometimes  to  the  westward  of  the  Pribilof  | 
Islands? 

A.  Yes;  sometimes  to  the  westward  and  sometimes  to  the 
eastward. 

Q.  To  the  north? 
,    A.  No;  to  the  northeast  end,  not  to  the  north  exactly. 
Q.  And  to  the  south? 
A.  Yes. 
Chance  in     Q-  From  your  experience  in  the  sea,  will  you  state  whether 
fi  n  d  i  n  gyou  did  And,  in  1887-88,  that  the  seals  were  to  be  found  in 
seals.         i\xQ  same  place  that  you  had  found  them  iu  1886? 

A.  No,  sir;  they  were  not;  1  never  found  successive  years 
that  1  found  seals  in  the  same  place. 

Q.  In  looking  for  seals  out  there  you  have  to  take  your 
vessel  arouud  various  parts  of  the  sea  to  come  across  a  bunch 
of  seals? 
A.  Yes. 
Condition  of     Q.  You  do  not  hunt  seals  in  herds,  do  you?    They  are 
seals.         found  iu  small  bunches,  are  they  not? 

A.  Mostly;  I  found  them  by  two  or  thi'ee  at  a  time. 
Q.  There  is  no  such  thing  as  running  across  thousands  of 
seals  and  being  able  to  kill  any  number  of  them  in  a  short 
time? 

A.  No,  sir;  1  never  found  it  so. 

Q.  Seals  are  hunted  individually  more  than  collectively, 
are  they  not? 
A.  Yes,  sir. 
Proximity  of     Q.  And  they  are  found  in  bunches  of  two  and  three  and  of 
otberse'als.  buuches  often  and  eleven  together? 


uxci;rtain  (.'Haractkk  ok  skal  hintincj. 


ISU 


tli<!  cap- 

lHllltill<r.| 

roach  the 


A.  Siiiiu'tiinL's  yon  see  tlioiii  in  hwav  lMinclie.s. 

(^1.  lint  tlu'y  are  generally  awaUe,  and  yon  can  fot  net  to 

llHIl  .' 

A.  Tlu'y  Inive  what  we  call  lookonts,  ami  arc  on  jinard 
iilicii  ill  licrds. 

i-.  W  Ih'M  seals  are  awake,  it  is  harder  to  approach  them,  Diilitulty  of 
laiiil,  ot  .(.arse,  harder  to  kill  them  ♦  .ipproiuh. 

A.  Yes,  sir. 

(I  'i'lie  majority  of  seals  are  shot  when  they  are  asleep,  are 

ItlK'.V.' 

A.  Vcs,  sir. 

(,».  Now,  to  enter  into  the  matter  of  taking  seals,  what  are 
Itlii'  ((iiiditions  which  would  modify  the  number  which  can 
Ibckillfd? 

A.  Well,  the  state  of  the  weather.    If  it  is  raining  or  strong  weather. 
ffiiids  itr  anything  of  that  kind,  the  seals  do  not  sleep  very 
well:  and  in  a  strong  bree/e  of  wind  you  can  not  get  on  to 
Itlii'iii. 

(),  Do  they  scent  youf 

A.  ir  you  get  to  the  windward  of  a  seal,  they  scent  you  at  Dirention  of 
Ja  loii;;' distance.  wimi. 

i}.  For  thai  reason  it  is  better  to  approach  the  seals  from 
the  Ice  side  * 

A.  Vcs;  from  the  leeward,  when  the  wind  is  Idowing  from 
tlii'sciil  to  the  hunter. 

i).  What  other  condition  modifies  the  result  wheu  seal 
Imiitiiig? 

A.  Well,  a  great  deal  depends  on  how  the  hunter  decides  Exi><Ti en ce 
to  tret  at  the  seal.  "^  hunter. 

i).  Docs  the  experience  of  a  master  have  anything  to  do  Experience 
with  it?  of  captain. 

A,  Yes,  sir. 

i).  K\ plain  to  the  Commissioners  why  that  enters  into  the 
modification  of  the  result  in  seal  catching. 

A.  Well,  the  master  has  to  do  with  looking  the  seals  up, 
and,  alter  he  sees  them,  keeping  his  vessel  in  position  and 
sending  the  boats  in  a  certain  direction,  and  so  on. 

Q.  Has  the  matter  of  handling  a  crew  and  selecting  a  crew 
aiiytliing  to  do  with  it? 

A.  Yes,  sir;  it  has  a  great  deal  to  do  with  it — whether 
you  get  a  good  crew  or  a  bad  crew. 

Q.  Captain  Ogilvie  had  never  been  in  the  Sea  before,  as 
far  as  you  know? 

A,  As  far  as  I  know,  he  had  never  been  in  the  Bering 
Sea  before. 

Q.  Sealing! 

A.  Nor  never  did  any  sealing  there,  as  far  as  I  know. 


-i------J 


l:i() 


INCKKTAIN    CHAKAC'TKK    oK    SKAL    Jll'NTINO. 


UI 


l'io\iiiiit.\  <il'     I).  Tlu'  qiK'stioii  its  to  wlietlier  or  not  then'  are  si'vciii. 
Dilifi-   vi'H- y^.j^j,,,]^  i„  .,  »„,,(i  locality,  lias  that  anvthini;  to  (h>  with  the 
result: 

A.  Ves,  sir,  <»!'  course;  the  more  b(«its  there  are  arouiiil 
either  with  siiootiufr  or  with  spears,  it  wakes  the  seals  ;iiid 
keeps  them  niovinj;,  and  you  'voiild  not  {j;et  as  nuuiy  as  if  you 
were  alone, 

C  li  a  II  <•  !•  of     {f,  A  seal  can  travel  taster  than  a  man  eoukl  row  in  a  boat 
«!K(a|ic.       or  that  a  canoe  could  paddle  f 

A.  Yes,  sir. 

if.  Or  even  faster  tl.an  an  ordiuary  vessel  with  an  oidi 
nary  wind  could  travel  ifter  theui? 

A.  Ves,  sir. 

Q.  And  they  could  kee))  up  that  rapidity  of  movement  foi 
such  a  lonn'  time  as  to  escape  their  i)ur8uer8,  could  theyiiot! 

A.  Yes,  sir. 

i).  Have  you  observed  what  the  seals  feed  upon! 

A.  Yes,  sir;  they  feed  most  upon  tisU  and  squids  and 
shrimps  in  different  localities. 

(^.  These  tish  travel  I'roin  one  part  of  the  sea  to  the  other 
in  the  same  season  f 

A.  No,  sir;  the  fish  shifts,  and  also  the  seals  shift  with 
them. 

Q.  That  is  what  I  asked  you ;  I  asked  if  they  travel  after 
theflsh? 

A.  Y'es,  sir. 

Q.  From  your  experience  of  your  three  years  in  the  Beriug 
Sea,  do  you  think  that  you  would  be  able  to  estimate  the 
number  of  skins  that  a  vessel  would  take  in  the  year  1887 
going  into  Bering  Sea? 

A.  No,  sir;  I  do  not. 

Captain  Miner  in  his  examination  made  the  follow- 
ing-statements: 

43.    '  Q.  Now,  when  you  went  into  the  sea  in  the  Penelope,  did 

you  come  upon  large  number  of  seals  at  times? 
A.  You  mean  in  sight  from  the  vessel? 
Q.  Yes. 

A.  I  suppose  I  have  seen  bunches  of  20  or  25  seals. 
.  Q.  And  in  your  boats? 

f  fndl  11  g     ^'  ^  have  seen  the  same  bunches  laying  around.    We  do 
seals.         not  estimate  the  number  of  seals  around  by  one  bunch.   We 
used  to  run  across  them. 

Q.  One  bunch  would  indicate  that  there  were  other  bunches 
near? 

A.  Yes,  sir;  on  the  feeding  ground  of  seals. 


(,t.  Do  you  I 

„(riirn'iice,   th 

idiiiMls  you  s< 

A.  i  liave  8 

Ijlft  tliciii  when 

tlicy  were  iiior 

(,i.  ^  oil  coui 

idiild  ill  a  lar^ 
A.  ^  t's.  sir. 
(,».  What  is 
A.  lliey  do 
(,».  Tiiey  arc 
A.  ^'^'s,  sir. 
{).  And  whe 
A.  It  is  \ev\f 
(,».  Is  there  j 

sliiit  when  the; 
A.  Yes,  sir; 
(,».  Why  is  t 
A.  Because 

the  t'nint  while 

and  1  understc 

they  sink  tail  1 
Q.  And  go  f 
A.  Yes. 
(/.  They  doi 
A.  I  never 

ike  a  stone. 
Q.  You  nevi 
A.  I  always 

out  of  them 

from  the  back 
ii.  And  the 
A.  Yes,  sir. 
(i.  When  y 

usually  are  tn 
A.  Yes;  bei 

about  they  trj 
Q.  Do  the  8 
A.  Yes,  sir. 
Q.  At  what 
A.  I  think  i 
(^  Beyond 
A.  Oh,  no,  { 
Q.  Is  there 

tpproaching  £ 
A.  We  alwt 


UNCKIM'AIN    CHAKACTKK    OK    sKAI.    HUNlINCi. 


l!ll 


(^t.  I  til  you  tliul  it  tooccur  as  ail  ordinary  or  exceptional  <'">"i  it  ion 
iHYiint'iH'c,   that  wlieii   there  are   abiiiKhiiit   seals  on    the     "'  "''"'"■ 
;iiiiiii<l>  yoii  soiiietiines  can  not  get  them  f 

.\.  I  have  seen  that  ho.  I  have  seen  it  more  dillicult  to 
L»'i  iIh'iii  when  theri^  was  an  abundance  of  sealH  than  wheii 
I  tiny  wiTc  more  .scattered. 

{}.  Vdu  could  kill  in  a  segregated  lium!h  easier  than  you  l  l..\iInit.v 
olll(l  in  a  large  bunch?  "*'   other 

A.  ^ Cs.  sir.  •""♦'"• 

(,>.  What  is  the  ditliculty  abotit  that? 

A.  Tiiey  <lo  not  deep  when  they  are  together. 

(,».  They  arc  lu^jiosed  to  play? 

A.  ^^'s,  sir. 

i).  And  when  awake  is  it  less  easy  to  get  theui  ? 

A.  It  is  very  much  more  difliicult  to  get  theui. 

().  Is  there  any  larger  proportion  of  seals  lost  after  being  c;  huucc  of 
|sli(it  wiien  they  are  awake?  escupe. 

A.  Ves,  sir;  of  awake  seals  a  large  ])roportion  are  lost. 

(}.  Why  is  thatf 

A.  Heeause  they  are  standing  up  in  the  water  and  shot  in  i-v^t  by  sinit- 
Itlie  front  while  looking  at  you.    They  fall  on  their  back  then,     '"*''• 
and  1  uiulerstand  that  the  air  comes  oat  of  their  body,  and 
I  they  sink  tail  first. 

Q.  And  go  out  of  sight  and  are  lostf 

A.  Yes. 

Q.  They  don't  come  up  again! 

A.  I  never  knew  of  one  to  come  up;  a  dead  seal  will  sink 
I  like  a  stone. 

Q.  You  never  knew  of  one  to  come  up? 

A.  1  always  understood  it  that  way.  When  the  wind  is 
lout  of  them  they  go  down  like  a  stone,  but  if  they  are  shot 
I  from  the  back  they  float  quite  a  while. 

(^  And  they  are  shot  from  the  back  when  asleep? 

A.  Yes,  sir. 

Q.  When  you  approach  them  as  they  are  awake  they  •^'*«"^*>' ,  <»f 
lusnally  are  fronting  you  »  approach. 

A.  Yes ;  because  most  of  the  time  if  they  know  you  are 
[about  they  try  to  look  at  you. 

( j.  1  )o  the  seals  scent  a  man  ? 

A.  \'es,  sir. 

Q.  At  what  distance? 

A.  I  think  at  an  extraordinary  distance. 

(^  l'>eyond  the  sight  of  the  vessel? 

A.  Oh,  no,  sir;  but  I  should  think  at  least  300  or  400  yards.  Direction  of 

Q.  Is  there  any  special  method  adopted  because  of  this  in    ^"**  • 
Itppmaching  a  seal? 

A.  We  always  approach  from  the  leeward.    That  is,  if  we 


t.  ■■  ' 


1J)2 


ITNCKHTAIN    (MIAKACTliU    OF    SKAI.    llUNTINd. 


I 


lire'  to  tli«)  wiii(l«  iird  of  the  soul  we  iiie  rart'f'iil  not  lo  \nm 
her  tlint  wiiy. 
Kx|iori«'ii<i-     (^_  Now,  Oiiptiiiii  Miner,  out  of  a    body  of  Meals  awivke. 
c)(  Imiitcr.  „|,„f  |H(»p()rtion  ol'  them  tliiit  lire  kilh'd  me  histf 

A.   It  (leiieiidn  ii  j;i'eat  deal  on  the  iniin  who  Khootn  tliciii. 
t'l'H'icf  (»i'     (^.  ho  yon  shoot  them  at  some  distiinee  when  they  arc 
l.mii.K.        .,vvi,ke? 

A.  ir  yon  shoot  them  at  a  long  distan(;e,  1  think  i'nlly  half 
wouhl  he  lost. 
if.  Fully  hiilf? 

A.  Yes,  sir;  that  is,  when  we  kill  at  a  Ion;;  distance. 
»  «  *  #  # 

R.,  521.  Mm-     (^_  >Jo\v,  Captain  Miner,  will  yon  please  state  whether  tbc 
ScdN   iiwnk-  filing  <'•'  the  gnus  will  awaken  the  seals? 
eiioil.  A.  It  does  very  miieh:  yes,  sir. 

if,.  Does  it  tend  to  make  them  wild? 
A.  Yes,  sir. 

if.  And  do  they  run  from  the  ship  or  from  the  boats  when 
the  guns  begin  to  tire? 

A.  They  get  away  from  the  boat  that  is  tiring  as  fast  as 
they  oiin. 

Q.  ^\tid  they  can  go  faster  than  a  boat  can  be  pulled  by  mi 
oarsmiin,  can  they  not? 
A.   Yes,  sir. 

I).  So  that  the  guns  awaken  them,  and  the  seals  that  an; 
near  enough  to  hear  the  guns,  to  be  frightened  by  tlioin, 
make  way. 
Atiiio8i)h«ric     A.  I  think  atmospheric  changes  have  a  great  deal  to  do 
clinnjtos.     ^^jji,  j^     Sonio  days  they  apparently  sleep  verv  soundly,  do 
not  awake  easily,  and  others  they  are  very  easily  disturbed. 
i).  And  then  tliey  are  restive  and  run  f 
A.  Very. 

ii.  And  get  away  ? 
A.  As  soon  as  they  can. 

Q.  Now,  is  it  a  fact  that,  taking  the  season  of  July  and 
August,  you  get  a  very  small  proiiortion  of  the  seals  you 
see,  taking  the  sealing  season  from  beginning  to  endl 
Skill  of  luui-     A.  Yes,  sir;  there  is  a  groat  ditlerence  in  different  men  who 
teiH.  hunt  obout  that.    I  have  carried  men  with  me  who  I  dou't 

think  would  average  one  in  ten  of  what  they  saw;  other  men 
would  get  nine  out  of  every  ton  that  they  saw. 
Q.  You  yourself  rarely  lose  a  seal  when  you  get  after  liiint 
A.  If  1  get  close  enough  to  shoot  him. 
Q.  You  usually  get  a  seal  when  you  shoot  him! 
A.  Yes,  sir;  usually. 

Q.  8o  that  you  get  a  very  large  proportion  of  the  sealB 
you  shoot  f 


A.  Ves,  sir 
iiway. 

{}.  And  OIK 
jM  your  i'amili 

IMit  HllOOt  if  tl 

A.  Ves,  sir 
{).  Have  y 

;i\vnl((ui  the  s 
A.  Yes  ;  o 

restive  tluiu 

inn  H|»' 

{),  In  that 

A.  Yes,  si  I 

there  are  a  , 

jiiive  seen  tin 

s|ir;iii^  up  til 

{).  And  of 

A.  Yes,  sii 

().  And  hi 

A.  Yes,  si 
tlicy  will  roll 

('}.  What  a 
tliev  are  in  t 

A.  The  chi 
very  caiitiou 

(').  So  thtt 
sealH  ? 

A.  riie  lat 
iiig  seals. 

(}..  What 
oHitioii?  Yc 
and  longitut 
tind  Heals  in 
you  will  flm 
year  in  the  f 

A.  No,  sii 

Mr.  Alo> 

in<;  11  ml  H( 
ui^i'lit  yea.n 
tioii  V  'til  t 

Q.  And  fi 
Hny  modify 

U  H-A 


UNCKRTAIN   CHARACTER   OF   8KAL   HUNTING. 


198 


to  piiKH  I     A.  Ve8,  HJr;  I  don't  like  to  take  cliniiceH  in  tlioir  gutting 

away, 
awake.  |     <^  A"«l  one  of  tlie  reasonH  you  get  ho  large  a  proportion 
isytnii  rainiliarity  with  tbe  Imnting  of  seals,  so  that  you  do 
not  Hlioot  i  f  the  chances  are  against  your  getting  a  dead  seal  ? 

A.  Vcs,  sir. 

().  Have  you   noticed   that  stiunis  suddenly  ciuning  upwind. 
iiwiilit^ii  the  seals  and  make  them  restless? 

A.  Yes  ;  even  a  small  breeze,  I  think,  makes  them  more 
rest iv(!  than  anything  else;  tlie  beginning  of  a  storm  com- 
iiii;  up. 

(»>.  In  that  case  they  are  awakened  f 

A.  Vcs,  Nir;  I  have  noticed  a  great  many  instances  when 
lliiMc  are  a  great  nuiny  seals  in  sight  in  ditl'erent  ]>laces; 
liiivc  Ht'cn  them  every  few  nnnutos;  ami  when  a  light  breeze 
s|)r)iii}j  up  there  \'as  not  a  seal  to  be  seen. 

(/.  And  of  all  those  seals  in  sight  you  would  get  no  more? 

A.  Yes,  sir;  they  disappeared. 

i).  And  have  you  noticed  that  a  heavy  rain  will  awaken  Raiu, 
miM 

A.  Yes,  sir;  they  will  not  sleep  at  all  in  a  heavy  nun; 
llic.v  will  roll  and  play. 

(}.  What  are  the  chances  of  getting  seals  in  sight  when 
tlit'v  are  in  that  condiUon? 

A.  Tlie  chances  are  against  getting  them;  one  has  to  work 
very  cautiouBly. 

<^  tSo  that  the  large  catches  are  made  of  the  sleeping 
ncuIh  ? 

A.  The  largest  catches  are  made  in  calm  weather  of  sleep- 
ing Hoals. 

i).  What  have  you  to  say,  Oaptain  Miner,  as  to  this  prop-  Chance  ol 
osition  ?    You  seal  in  Bering  Sea  at  a  given  point  of  latitude    finding 
811(1  longitude  on  the  8th  of  July,  we  will  say,  1880,  and  you    ^      ' 
liiui  Heals  in  pletity  and  good  hunting.    Does  it  follow  that 
yoii  will  tind  se.'ils  at  the  same  season  of  the  year  auotber 
yoar  in  the  same  latitude  aud  longitude  1 

A.  No,  sir,  it  doesn't. 

1^1  r.  Aloxjiiidur,  whose  invostig'ntion  relative  to  fisli- 
inii  Jiiul  Heal  liuiitin^  in  Beiiiig  Sen  for  a  period  of 
oijilit  yearn  makes  lii«  testitnouy  of  value  in  conneC- 
tinii  vvtii  the  jn'esent  Hubjeet,  testified  as  follows: 

Q.  And  from  your  experience,  what  oouditious  would  you  r.,  473,  une 
Ray  modify  the  number  of  seals  taken  by  vessels!  46. 

11  8 13 


194 


UNCERTAIN    CHARACTER    OF    SEAL    HUNTING. 


Experience     A.  The  Condition  of  the  weather  would  enter  largely  into 

of  captaiuit,  and  the  skill  of  the  hunters,  the  previous  experience  of 

and  i'U"t- the  captain  and  the  executive  ability  in  regard  to  haiidling 

^^^'  crews,  pariivularly  those  made  vp  of  Indians,  and  the  cbauces 

of  catching  seals  and  possibly  remaining  among  them  when 

found.     I  mean  of  finding  seals,  and  of  remaining  among 

them  when  found. 

Proximity  of     Q.  What  would  you  say  as  to  other  vessels  being  in  tlie 

other   ves- vicinity'? 

^^^*'  A.  A  large  number  of  vessels  being  in  the  vicinity  would 

lessen  the  chances  of  each  vessel  taking  seals. 
Weatlier.  Q.  And  what  would  you  consider  favorable  weather  for 

sealing. 

A.  Favorable  weather  would  be  clear,  or  a  comparatively 
sky  and  a  smooth  sea  and  a  gentle  or  a  very  moderate 
breeze. 

Q.  Does  the  weather  previous  to  a  clear  sky  modify  the 
catch  at  all  in  any  way'; 
A.  The  weather  previous  ? 

Q.  Does  the  weather  i)revious  to  a  clear  spell  affect  the 
catch  ? 

A.  Yes,  sir.  • 

Q.  Explain  that,  please. 

A.  For  illustration,  there  has  been  a  good  deal  of  wind 
■  blowing  in  any  direction  for  three  or  four  days^  and  the  seals 
are  tired  out.  They  will  naturally  sleep  more  soundly  at  the 
endof  the  gale  of  wind  than  otherwise.  Take  it  on  the  other 
hand,  when  seals  have  been  resting  for  a  long  time — Iiniglit 
'  state  it  this  way,  that  in  a  heavy  gale  of  wind  seals  do  not 
sleep  very  soundly,  and  i)ossibly  will  not  sleep  at  all  unless 

'  ;     '.  they  have  been  tired  out  by  previous  exhaustion  by  a  series 

of  gales,  something  wliicli  has  interrupted  their  sleep,  but  in 
cases  where  they  have  been  interrupted  by  wind  and  weather 
they  will  sleej)  under  conditiinis  wliich  they  would  not  other- 
wise do. 

Q.  That  is  a  fact^  Mr.  Alexander,  is  it  not,  that  not  only  the 
weather  of  the  day  on  which  a  lowering  is  made  affects  a 
catch,  but  also  the  weather  that  has  previously  been  bad? 
A.  Yes,  sir. 

Q.  And  what  would  you  consider  unfavorable  weather  for 

sealing,  beside  the  mere  fact  of  being  unable  to  lower  your 

boat  on  account  of  rough  water? 

A.  Well,  at  times  very  foggy  weather  interferes  with  the 

.  .'     .;   lowering  of  the  boat,  and  sometimes  heavy  rain  will  inter- 

'       fere;  that  is,  it  won't  interfere  with  the  lowering  of  the  boat, 

but  the  chances  are  itnfavorable  for  catching  many  seals 

when  it  is  raining  very  hard. 


Q.  Why  is 

A.  Because 

become  restU 

hard  to  appro 

{).  What  w 

rience,  as  to  t 

A.  It  is  vai 

Q.  1  s  it  vai 

A.  It  is. 

Q.  Can  yot 

A.  1  can  ill 

before  si)okei 

tion  of  it  we 

islands,  or  th 

lowered  the  i 

nearly  all  the 

or  two  and  a 

the  IJogoslotf 

and  a  large  n 

in  gales  of  wi 

# 

(,).  Now  I  ^ 
to  zones  of  g( 

A.  I  think 
bad  weather. 

(,).  What  -v 
fiiir  weather 

A.  There  t 
absolutely  ce 
to  111  1(1  foul 
stances. 

(,).  Is  ther( 
ill  abundanc 

A.  I  know 

().  In  you] 
the  same  pla 

A.  We  foi 
nam  Iter,  or  e 
I'ied. 

(,).  j\[r.  Al 
give  for  the 
tain  time,  ai 

A.  Oh,  la! 
tliev  subsist 

il  What 

A.  Their 
medusie,  an 


UNCERTAIN  CHARACTER  OF  SEAL  HUNTING. 


195 


Q.  Why  is  that? 

A.  Beuause  the  heavy  rains  ofttimes  cause  the  seals  to  Kain. 
become  restless.    They  don't  sleep  soundly,  and  they  are 
harl  to  approach. 

(,).  What  would  you  say,  from  your  knowledge  and  expe- 
rience, as  to  the  weather  in  the  sea? 

A.  It  is  variable. 

Q.  I  s  it  variable  in  different  localities  in  the  sea  ? 

A.  It  is. 

Q.  (.'an  you  illustrate  that  in  any  way? 

A.  I  can  illustrate  it  by  a  cruise  I  made  in  the  Louis  Olsen, 
before  sjjoken  of,  during  the  month  of  August.  A  larger  por- 
tion of  it  we  were  to  the  west  and  northwest  of  the  Seal 
islands,  or  the  Pribylof  Islands,  during  which  time  we  only 
lowered  the  number  of  days  which  I  have  mentioned;  and 
nearly  all  the  time,  if  not  quite  all  the  time,  two  degrees  south, 
or  two  and  a  half,  as  the  case  may  be,  down  at  what  they  call 
the  iJogosloff  Grounds,  there  were  lowerings  made  every  day, 
and  a  large  number  of  seals  were  being  taken,  while  we  were 
in  gales  of  wind  nearly  all  the  time. 


(}.  Xow  I  will  repeat  the  question.    What  would  you  say  r.,  476,  line 
to  zones  of  good  weather,  and  zones  of  bad  weather?  25. 

A,  I  think  there  are  zones  of  good  weather  and  zones  of  w  e  a  t  h  e  r 
bail  weather,  i^ones. 

i).  What  would  you  say  as  to  any  particular  locality  for 
fair  weather  ? 

A.  There  are  no  known  spots  so  far  as  I  know  where  it  is 
absolutely  certain  to  find  fair  weather,  or  absolutely  certain 
to  liiid  foul  weather.  They  vary  according  to  the  circum- 
stnnces, 

().  Is  there  any  locality  where  seals  can  always  be  found  Chance  of 
in  abundance?  finding 

A.  I  know  of  none.  ^''*^*- 

().  In  your  experience  of  two  years,  did  you  find  seals  at 
the  same  place  ? 

A.  AVe  found  seals,  but  they  were  not  always  of  the  same 
uiunher,  or  equally  abundant  one  time  as  another;  they  va- 
ried. 

'»  *  *  «  • 

^>.  Mr.  Alexander,  will  you  stat  3  what  reason  you  would  K.,477,line  1. 
give  for  the  abundance  of  seals  at  a  certain  place  and  a  cer- 
tain time,  and  their  not  being  found  at  another? 

A.  Oh,  largely  to  the  migratory  species  of  the  fish  which 
they  subsist  on. 

().  What  is  their  food! 

A.  Their  too*'  onsists  of  cod,  in  a  measure,  salmon,  squid, 
medusa',  and  li    .ang  Crustacea. 


196 


UNCERTAIN   CHARACTER    OF   SEAL    HUNTING. 


Q.  You  would  say  practically  they  are  surface  feeders! 
A.  They  are  practically  surface  feeders. 
Q.  And  the  species  of  fish  migratory? 

A.  Migratory. 

*  *  *  *  # 

Proximity  of     Q,  What  would  you  say  as  to  the  number  of  vessels  in  a 
other  ves-  certain  locality  affecting  the  catch  ? 

^®*®'  A.  I  should  think  that  a  large  number  of  vessels  in  a 

locality  where  seals  were  fairly  abundant  w'ould  have  a  ten- 
dency to  lessen  the  individual  catch. 

Q.  Why? 

A.  Because  seals  are  very  timid,  and  the  more  boats  there 
are  on  a  given  ground  covering  a  small  or  large  area,  as  the 
case  ma.v'  be,  would  have  a  tendency  to  frighten  them.  It 
does  frig 'ten  them;  they  are  harder  to  approach — less  easily 
obtained. 
Condition  of  Q.  Now,  ♦rom  your  knowledge  of  sealing  in  Bering  Sea, 
seals.  even  if  you  possessed  the  data  as  to  the  number  of  hunters, 
their  skill,  the  experience  of  the  captain,  and  the  conditions 
of  the  weather,  locality  of  the  vessel,  and  the  proximity  o^ 
other  vessels,  do  you  think  there  is  any  basis  upon  which 
the  probable  catch  of  a  vessel  for  a  given  period  of  time  could 
be  predicated  ? 

A.  I  do  not. 

Q.  In  connection  with  your  duties  on  the  Fish  Commission, 
have  you  studied  the  habits  of  migratory  flsh  in  Bering  Sea 
that  you  have  spoken  off 

A.  Yes,  sir. 

Q.  How  many  years  have  you  made  a  study  of  those! 

A.  I  think  it  is  eight  years  since  I  first  went  there. 

Besides  the  testimony  of  the  four  witnesses  given 
above,  the  evidence  relating  to  this  subject  is  as  fol- 
lows: 

The  first  citation  is  an  abstract  read  into  the  Record 
from  the  case  of  the  United  States  submitted  to  the 
Tribunal  of  Arbitration  at  Paris.  It  relates  particu- 
larly to  the  difficulty  the  hunter  experiences  in  ap- 
proaching a  seal  and  securing  it  after  being  wounded, 

R.,  273,  line  This  is  self-evident,  when  the  fact  is  taken  into  considera 
tion  that  the  boat  is  in  almost  constant  motion,  and  the 
mark  is  the  small  head  of  a  seal,  among  the  waves,  30, 40, 50, 
or,  when  a  rifle  is  used,  even  100  yards  from  the  hunter. 
Four  other  conditions  also  modify  this  possibility  of  loss: 
First,  the  state  of  the  weather,  for  if  the  water  is  rough  the 


30. 


UNCERTAIN   CHARACTER   OF    SEAL   HUNTING.  197 

boat  and  the  seal  having  more  motion  the  percentage  of 
those  Idlled  or  stunned  by  the  shot  is  much  less  than  when 
the  sea  is  smootli;  second,  the  condition  of  the  seal  shot  at, 
tor  it'  breecliing,  the  sliot  being  at  the  body  is  not  liable  to 
paralyze  the  animal,  though  it  may  bo  as  fatal  as  when  the 
seal  is  asleep  on  the  water  with  oidy  a  portion  of  its  head 
exposed  as  a  mark;  third,  the  skill  of  the  hunter  is  also  to 
be  considered;  and,  fourth,  whether  or  not  the  seals  are 
wild  and  hard  to  ai)i)roach,  in  which  case  the  hunter  is  from 
necessity  compelled  to  lire  at  long  range. 

A  soeoiid  citation  from  the  same  document  treats 
(if  the  difficulty  of  securing-  the  animal  after  it  has 
Ik'cii  killed. 

IJesides  those  lost  by  wounding,  in  many  cases  others  R.,  273,  line 
killed  outright  are  not  taken,  because  the  specific  gravity  of  ^^• 
the  seal  being  greater  than  water,  it  sinks  before  it  can  be 
secured.  In  order  to  save  as  many  sinking  seals  as  possible, 
each  boat  carries  a  gaff  with  a  handle  from  four  to  six  feet 
oiig',  with  which  to  grapple  the  carcass,  if  the  point  where 
it  sank  can  be  reached  in  time  to  do  so.  Of  course,  in  secur- 
ing a  sinking  seal  much  depends  on  the  distance  from  which 
the  seal  was  shot,  the  condition  of  the  water,  whether  rough 
or  smooth,  and  whether  or  not  darkened  by  the  blood  of  the 
animal,  as  also  the  skill  of  the  hunter  in  marking  with  his 
eye  the  place  where  the  seal  sank.  It  can  therefore  be  seen 
that  the  range  of  possible  and  probable  loss,  in  case  the  seal 
is  killed  outright,  is  certainly  large,  though  not  so  great  as 
wliei  ''  •»  seal  is  wounded. 

The  above  citations  relate  particularly  to  the  expe- 
I'ieiicc  of  the  hunter,  and  the  following  testimony 
is  upon  the  same  subject. 

William  T.  Bragg-,  called  on  behalf  of  Great  Britain, 

testitit'd: 

ii.  Now,  witness,  does  it  make  an/  difference  about  theR>265,Iine6. 
catdi  of  a  vessel,  the  capacity,  and  experience  of  the  hunters  f 

A.  It  does. 

<^  What  other  contingencies  are  there,  witness,  that  youR._{^265,  line 
know  of,  that  would  make  a  difference  in  results  of  one 
hunter  as  against  another,  or  of  one  boat  as  against  another! 

A.  I  do  not  understand  your  question. 

().  What  facts  that  you  know  of  arise,  which  make  a  dif- 
t'eieiice  in  the  catch  of  one  boat  as  compared  with  another, 
excei»t  the  scarcity  or  plentifulness  of  seals? 


44. 


198 


UNCERTAIN   CHARACTER    OF    SEAL    HUNTING, 


E.,  327,   line 
65. 


A.  Well,  some  hunters  are  superior  to  others,  aud  then, 
again,  it  depends  on  your  boat's  crew. 

Q.  Your  vessel's  crew,  you  mean  ? 

A.  The  crew  of  the  boat. 

Q.  Of  tiie  small  boat? 

A.  Of  the  small  boat;  yes,  sir. 

(^  What  do  you  mean  by  that?  What  would  depend 
upon  the  crew,  as  to  whether  they  could  reach  the  seal  or 
not  after  it  was  shot  ? 

A.  It  is  in  chasing  a  cripple,  or  in  getting  over  more 
ground.  A  good  crew  can  get  over  more  ground  in  a  day 
than  a  poor  crew,  aud  the  more  ground  you  go  over  the 
more  seals  you  are  liable  to  get. 

J.  D.  Warrtni  testilied  as  follows: 

R.,  288,  line     Q.  Does  the  result  of  the  sealing  voyage  depend,  to  any 
39.  extent,  on  the  ex]ierience  of  the  hunters? 

A.  Oh,  yes. 

Cai)taiii   McKiol,  testified : 

Q.  Is  it  an  advantage  to  have  three  men  in  a  boat? 

A.  Yes,  sir. 

i).  And  you  would  not  have  such  good  results  with  two 
men  in  a  boat  ? 

A.  Well,  no;  three  men  do  better  work  than  two  nien. 

Q.  One  of  tlieiu  pulls  the  boat,  one  oi  them  steers  the  boat, 
and  one  of  them  shoots '! 

.  A.  Well,  yes;  the  steerer's  work  is  to  get  up  on  the  seals; 
he  steers  the  boat  up  on  the  seal. 

Q.  And  outside  of  that  time  he  also  pulls? 

A.  Pulls  or  pushes. 

Q.  Is  it  a  fact  that  sometimes  the  j)uller  or  steerer,  or  botb, 
shoot? 

A.  Never  to  my  knowledge. 

Q.  But  where  there  are  tliree  men  in  a  boat,  it  gives  tliP 
hunter  better  opportunity  to  shoot  than  where  there  are 
only  two? 

A.  Yes;  the  hunter  has  a  better  opportunity. 

Q.  And  it  is  to  be  expected  that  he  will  liave  better 
results? 

A.  Exwtly. 

(/ai)t.  W.  K.  linker,  j^ave  tiie  folk>\viii<j;  testiiiiony: 

R.,  727,  line     Q.  Now,  does  it  make  any  differenct'!  ir:  the  result  as  to 
58.  whether  your  hunters  are  experienced  or  not? 

A.  Yes,  sir. 


UNCERTAIN    CHARACTEK    OF    SEAL    HUNTING. 


199 


11(1  then,  I  Q.  And,  therefore,  a  man  with  three  years'  experience,  if 
lie  wiis  a  good  shot,  wonld  get  more  seals  than  he  would  in 
liis  earlier  years? 

A.  Vea,  sir. 

(l  Well,  admitting,  then,  that  their  hunters  had  not  as  R.,  789,  line 
iimcii  experience  as  your  hunters,  would  you  say  that  it    19. 
would  be  fair  to  base  the  catch  of  the  other  vessel  on  what 
you  (lid  ? 

A.  Xo,  sir. 

As  to  tlie  ex[)ei'ieiH'e  of  tlio  captain,  the  witness 
Biiiuo-,  ti'stityiii"'  ill  re<>'anl  to  the  Mar//  Kllcn  in  1H86, 
stiitnl: 

i).  Do  results  depend  any  on  the  <'apacity  of  tl-e  master  R.,  265,  line 
of  a  vessel  as  to  his  experience  in  the  manner  of  locating?       -"'S. 

A.  It  does. 

Q.  And  the  Captain  of  your  vessel,  Daniel  McLean,  was 
one  of  the  most  experienced  men  in  the  business? 

A.  He  was. 

Captain  Baker  said  that  the  skill  of  the  ('a})tain  in k.,  728,  line 
suiiic  (leoree  entered  into  the  probalalities  of  a  catch 
ill  iJcriii""  Sea. 

('apt.  C.  N.  Cox  jjave  the  following  testimony: 

().  Is  it  not  a  fact,  Captain,  that  a  man's  skill  as  a  captain  ^-.j,"*^^'  ^'°® 
aiul  liis  reputation  depend  on  the  success  he  has  in  handling    ""■ 
his  crew  of  hunters  and  seamen  ? 

A.  Oh.  yes;  to  a  certain  extent  it  does. 

().  And  by  handling  his  crew  with  success,  you  mean  raan- 
ajiiii};'  them  so  that  you  can  get  the  best  results? 

A.  Yes. 

*  *  *  *  *  *  * 

<i*.  Vou  were  asked  by  Mr.  Warren  as  to  whether  there  K.^  612,  line 
was  not  a  good  deal  of  luck  in  this  matter,  and  particularly    ''^• 
wlii'tlier  there  was  not  a  good  deal  depended  on  the  way  the 
i'ai)taiu  handled  his  men,  and  you  said  there  was. 

A.  Yes,  sir, 

Q.  Assuming  that  you  have  a  captain  who  knows  how  to 
liandle  his  men,  there  is  not  much  chance  about  it,  is  there? 

A.  I  consider  t.;e  chances  are  whether  the  captain  stays 
aiuoiig  them  and  gets  them  or  not. 

^>.  If  you  once  find  seals  the  captain's  duty  is  to  keep 
iiniong  them? 

A.  Yes,  sir. 


mil 

iil 


mm 


200 


UNCERTAIN    CHARACTER    OF    SEAL    HUNTING. 


R.,  613,  line 
19. 


Q.  And  if  you  do  that  is  there  much  chance  about  it? 

A.  No  chance  whatever. 

Q.  Why? 

A.  If  you  stay  among  them  you  will  get  them. 

A  portion  of  tluH  extract  in  cited  in  the  Argument 
oil  behalf  of  Great  liritain  to  establish  the  certaiutv 
of  securiiifi"  seals.  It  is  needless  to  say,  in  connec- 
tion with  the  witness's  statement  that  the  seals  are 
found  "scattered  about,"  and  "three  or  four,  or  two" 
together,  "very  often  one,"  that  the  chances  he  refers 
to  are  sufficiently  numerous  to  make  the  ])robable 
success  of  sta/jinfj  (uiiong  them  very  uncertain. 

The  capacity  of  the  hunting  power  of  a  canoe  de- 
pends in  a  measure  u})on  the  inimber  of  skilled  hunt- 
ers it  contains.  Upon  this  subject  J.  D.  Warren 
testified  as  follows: 


K.,  280,  line 
24. 


Q.  And  how  many  of  them  hunted  ? 

A.  There  were  not  always  two  hunters;  sometimes  there 
was  merely  a  canoe  steerer  and  an  experienced  Indian 
hunter.  Sometimes  there  would  be  two  experienced  hunters 
in  the  canoe. 

Q.  How  many,  all  told,  in  the  canoe? 

A.  Two.  Sometimes  they  would  be  both  experienced 
hunters,  and  one  would  paddle  and  the  other  one  would 
strike  (spear)  the  seal,  or  sometimes  they  would  both  strike 
the  seal. 

Q.  And  actually  hunting  in  each  canoe,  how  many  were 
there? 

A.  Two. 

Q.  But  you  say  that  one  had  to  paddle  and  manage  the 
canoe? 

A.  Well,  sometimes,  if  they  came  on  two  seals,  both  would 
strike. 

Q.  But,  as  a  rule,  one  was  to  manage  the  canoe  and  the 
other  to  hunt  or  strike  the  seal  ? 

A.  Yes. 

Q.  What  you  mean  by  there  being  two  hunters  is  that  they 
both  had  spears  and  were  prepared  to  hunt  if  they  got  the 
chance? 

A.  They  were  both  practical  spearsmen. 

Although  in  some  instances  guns  were  used  by 
Indian  hunters,  yet  it  appears  from  the  evidence  given 


UNCERTAIN    CHARACTER   OP   SEAL   HUNTING. 


201 


it? 


:uinem 
irtaiiity 
ioiiiiec- 
fils  are 
)r  two" 
reter,s 
ohable 


Iiv  William  D.  Hyers  that  they  Averenot  .skillful  in  their 

use  ill  the  years  'l  HSU  and  1H87.     The  witness testitiecl :  K.,324,ime9. 

{).  Von  were  asked  something  about  the  difference  between 
white  men  and  Indians,  I  simply  want  to  ask  you  this 
question:  In  1880  and  1887  were  the  Indians  in  the  habit  of 
iisinj,' guns  at  all? 

A.  No. 

Q.  So  if  you  had  an  Indian  crew  at  that  time  you  would 
have  to  use  spears  ? 

A.  Yes,  sir. 

(i>.  At  that  time  which  were  considered  best,  spears  or 
guns  J 

A.  (funs. 

The  unreliability  of  the  Indian  hunters  and  the  dif- 
ticulty  which  attended  their  eni|doynient  as  liunters 
because  of  their  ignorance  and  superstition  receive 
a  complete  demonstration  from  the  evidence. 

Alexander  Rej)pen,  called  as  a  witness  on  behalf  of 
Ureat  Britain,  being-  questioned  as  to  the  reasons  for 
the  (iracc  leaving  Bering  Sea  in  188G,  gave  the  fol- 
lowing testimony : 


R.,  307,   line 
10. 


(^  xVnd  when  did  you  leave  the  Bering  Sea  1 

A.  We  left  on  the  14th  or  15th  of  August. 

Q.  Why  did  you  leave  on  the  llth  or  15th  of  August? 

A.  Well,  Indians  wanted  to  go  home. 

(}.  Did  they  object  to  remaining  any  longer? 

A.  They  were  afraid,  I  think.  They  objected  to  staying 
any  longer. 

(i>.  They  were  not  used  to  going  to  Bering  Sea,  I  sup- 
pose ? 

A.  Xo,  sir. 

Again,  at  another  place  in  his  examination,  the 
same  witness  said: 

The  Indians  don't  go  out  in  foggy  weather.  r.,  308,  line 

#  •  *  #  #23. 

Q.  Is  it  not  a  fact  that  before  you  came  out  it  was  blowing  r.,  310,  line 
pretty  hard,  and  that  was  the  reason  the  Indians  wanted  to    30. 
getaway? 

A.  Yes;  the  weather  commenced  to  be  a  little  bad. 

Q.  Are  not  the  Indians  very  superstitious? 


302 


UNCERTAIN    CHARACTER   OF    SEAL    HUNTING. 


A.  Yes;  they  are  an  a  general  rule. 

Q.  And  if  thev  want  to  go  away  do  tbe  captains  have  to 
go! 

A.  Yes;  to  humor  them.    It  is  of  no  use  to  go  against  them. 

Q.  Is  it  not  a  fact  that  tlie  season  was  practically  ended  on 
the  15th  August  that  year? 

A.  If  we  had  had  white  men  we  could  have  stayed  longer. 

Ca))t.  Williiiin  Cf>x,  relied  U[k>ii  by  Great  liritain, 
gave  the  toll<>\vin<>' testiMiony: 

R.,  767,  line     Q.  Why  did  you  leave  (m  tlie  l.">th  of  August? 
^-  A.  The  Indians  would  not  work  any  longer. 

Q.  And  you  left  on  the  I'lth  of  August? 

A.  Yes,  sir.  ■ 

#  *  *  «  • 

Q.  And  the  Indians  mutinied  and  would  not  work? 

A.  They  would  not  work. 

Q.  What  was  the  matter  with  the  Indians? 

A.  Tliey  wanted  to  go  home. 

Q.  Did  you  have  to  go  home? 

A.  Yes.' 

Q.  Was  there  any  talk  of  seizure  in  1890? 

A.  No. 


R.,  758,  line     Q-  When  you  say  the  Indians  wanted  to  go  home,  what 
55.  did  they  do  ? 

A.  They  broke  tUeir  spears  uj)  and  threw  their  paddles 
away. 
Q.  Was  there  anj'  use  staying  any  longer? 
A.  No. 

Q.  How  was  the  weather  getting  when  that  happened? 
•  A.  It  was  getting  better. 

And  ag'ain  in  dealinji'  witli  the  general  question  of 
the  difficulties  to  be  met  by  a  ('a})tain  who  has  em- 
ployed Indian  hunters,  he  testified  : 

R.,  762,  line     Q.  An  Indian  is  usually  ready  when  he  is  off  sealing  to 
37.  make  what  money  he  can,  is  he  not? 

A.  Yes,  sir;  when  he  is  out  there,  but  when  they  take  a 
notion  in  their  heads  money  won't  stand  in  the  way. 

Q.  The  only  notion  you  know  they  took  in  their  beads  was 
they  wanted  to  go  home  because  of  dirty  weather? 

A.  Well,  as  I  say,  there  was  one  sick  Indian  aboard ;  the 
Indians  were  all  afraid  he  would  die  and  be  a  sort  of  Jonah. 


UNCERTAIN   CHAKACTER   OF   SEAL    HUNTING.  208 

().  They  are  superstitious  about  tliat,  are  they  not? 
A.  N'ery. 

Tlic  condition  of  the  seals  as  aftectinjr  the  results  of 
11  \(i\  a<»'e  are  referred  to  by  several  witnesses.    Auion<if  r,^  gog^  uae 
tliciii  C  N.  Cox  jiave  the  follovvinj;'  testimony:  37. 

(^>.  Just  tell  the  Ooramissioners — you  have  had  considerable 
experience  in  sealing — when  you  are  out  sealing  how  many 
seals  are  there  in  a  bunch  that  hunters  go  after  ordinarily; 
how  do  they  travel? 

A.  Oh,  we  lower  very  often  and  we  don't  see  seals  at  all. 
When  tlie  day  is  fine  enough  to  put  our  boats  out  we  lower 
wlietiier  we  see  seals  or  not,  when  we  consider  we  are  on  the 
ground  for  seals. 

After  refeiTin<>-  to  a  single  instance  when  he  saw  a 
liniic  body  of  seals  off  the  Columbia  River,  the  wit- 
iioss  was  asked: 


i 


(i.  You  never  saw  any  in  Bering  Sea  in  such  crowds  asR.,  608,  line 
then)  ?  60. 

A.  1  have  seen  (luite  a  number  of  seals  from  the  vessel, 
but  I  don't  know  that  we  ever  lowered  expressly  for  that 
purpose. 

(^  You  don't  want  to  be  understood  as  testifying  that 
boats  go  out  into  a  large  herd  of  seals  and  catch  them  right 
and  left? 

A.  No,  sir. 

(i.  They  take  them  up  separately? 

A.  Yes ;  one  and  two  togethei- — three. 

Auain,  referring- to  the  way  in  which  the  hunting  is 
ilniic,  the  witness  gave  testimony: 

<v>.  They  [tlie  canoes]  circulate  about  the  boat,  and  whenR.,609,line3. 
they  find  a  seal  sleeping,  traveling,  or  breeching,  whatever 
111'  may  be  doing,  they  kill  it. 

A.  Yes,  sir. 

(■i.  Then  tliey  go  searching  for  another? 

A.  Yes,  sir. 

<i>.  It  is  a  fact,  is  it  not,  that  when  there  are  a  large  num- 
ber of  seals  traveling  together,  they  have  seals  on  the  edge 
of  the  herd  that  keep  an  outlook,  and  it  is  very  hard  to 
approach  them  ? 


204 


UNCERTAIN    CHARACTER   OF    SEAL    HUNTING. 


A.  Ves;  when  they  are  .sleeping,  a  large  iiuniber  together, 
they  are  much  moreditticult  together  than  if  sleeping  singly. 

Q.  Then  it  ia  a  fact  that  if  they  are  more  abundant  in  the 
neighborhood  of  the  vessel  it  is  harder  to  get  them  t 

A.  I  do  not  think  so. 

Q.  Where  there  is  a  large  bunch  of  seals  asleep  they 
always  have  outlookers? 

A.  There  is  generally  one  or  two  awake. 

Q.  They  make  a  noise  and  others  are  aroused  H 

A.  Yes,  sir. 

Upon  his  redirect  exaiiiiiiatioii  tlw  witnes.s  was 
asked: 

R.,  613,  Hue     Q.  Do  seals  herd  together,  as  ]Mr.  Warr*  a  suggests? 

1.  A.  I  have  never  seen  them  that  way. 

R.  613   lino     Q.  Coming  back  to  the  point  about  the  seals  being  all  In  a 
12.    '         herd  together,  is  that  the  case  at  all  in  the  mouths  of  July, 
August,  and  September? 
A.  I  liave  never  seen  them  in  that  way. 
Q.  How  do  you  find  the  seals  then  ? 
A.  Scattered  about. 
Q.  On  certain  grounds? 
A.  I  seldom  find  them  on  the  same  grounds. 
Q.  How  many  will  you  And  together,  as  a  rule? 
A.  Three  or  four,  two,  very  often  one. 
Q.  And  this  idea  of  large  herds  with  watchmen  to  keep  the 
pelagic  sealer  off,  is  there  any  of  that  kind  in  Bering  Seat 
A.  Not  in  my  experience. 
R„  613,  line     Q.  Did  you  ever  meet  a  mass  containing  as  many  as  25 
31.  seals  close  together  in  Bering  Sea  at  once? 

A.  No,  sir. 

Q.  You  meet  them  in  scattered  numbers? 
A.  Yes,  sir. 

Thomas  H.  Brown,  sworn  on  behalf  of  Great  Brit- 
ain, on  cross-exaininatior  was  asked  if  he  had  made 
an  affidavit,  a  copy  of  whicli  appeared  in  the  pro- 
ceedings of  the  Tribunal  of  Arbitration  at  Paris.  He 
replied  that  he  had,  and  that  the  statements  contained 
in  it  were  true.  Paragraph  8  of  the  affidavit  contains 
the  following: 

R.,  652,  line     I  am  Sure  that  I  don't  shoot  at  one  out  of  fifty  seals  that 
51-  I  see;  probably  not  one  out  of  a  hundred. 


UNCERTAIN   CHARACTER   OF    8EAL    HUNTING. 


205 


Ciipt.  \V.  K.  linker,  testityino-  as  to  tlic  iu»Mlifi('a-«-^.728,  line 
tioiis  Nvliicli  iMiter  into  tlio  catcli  in  Bcrin;*'  Sea,  stiit«'(l 
tliiit  "tlio  seals  are  wilder  stnnetimes  than   at  other 
times.''  ■ 

Oiddino-  ('.  (lerow  testified: 

Von  may  be  amongst  lots  of  seals  and  not  kill  any. 
Ills  examination  also  contains  the  tollowiny*: 


R.,  1499,  line 
15. 


{).  You  were  going  to  tell  us  that  there  were  many  sealuR.,  i499,  line 
around  the  boat  and  that  you  could  not  get  any.    What    ^t- 
observation  have  yoti  to  make  about  that? 

A.  I  w;is  merely  going  to  say  that  you  might  be  in  sight 
of  bund:  cdsof  seals  and  you  couhl  not  possibly  get  one. 

Q.  Why! 

A.  ( )n  account  of  the  wind,  and  on  account  of,  sometimes, 
their  travelin  j;  and  you  may  see  thousands  of  them  and  you 
can  not  get  a  seal. 

Q.  There  may  be  seals  all  about  you  and  you  could  not  get 
any  of  themf 

A.  Yes. 

The  importance  of  the  weather  in  determining  the 
siuiess  of  hunting  in  Bering  Sea  is  referred  to  by 
several  witnesses. 

Alexander  Reppen,  already  cited,  testified  as  follows 
upon  this  subject: 

(i.  While  you  were  in  the  sea  were  there  many  calm 
days?  R    810,  line 

85. 

A.  Not  very  many.  R.,  311,  line 

(}.  Did  you  have  worse  weather  [in  August]  than  you  did    50. 
in  July? 

A.  Yes. 

Q.  Did  your  sealing  end  about  the  10th  of  Aagustf 

A.  About  that  time,  I  think. 

Q.  You  went  out  of  the  sea  on  the  15th  of  August? 

A.  Yes. 

Q.  You  stated  that  you  were  there  several  days  waiting  for 
good  weather,  did  you  not? 

A.  Yes. 

ii.  And  the  good  weather  did  not  come? 


iss**s 


206 


UNCERTAIN    CHARACTER    OF    SEAL    HUNTING. 


A.  No. 

Q.  So  you  went  out  of  tbe  sea? 
A.  Yes. 

Q.  It  was  bad  weather;  that  was  the  chief  reason  why  you 
left  the  sea? 
A.  Yes. 

The  witness,  C.  N.  Cox,  to  whom  reference  has 
been  made,  was  asked: 

R.,  608,  line     Q.  You  (lid  not  think  that  because  you  take  seals  in  one 
15.  part  of  the  month  that  that  is  any  indication  that  you  would 

take  them  in  another  part  of  the  month? 
A.  A  great  deal  depends  on  the  weather. 

Bearing-  upon  the  weather  conditions,  and  espe- 
cially ni)on  the  frequency  and  density  of  the  fogs 
which  prevail  in  these  waters,  is  e\  idence  relating  to 
the  conuiion  occurrence  of  the  loss  of  canoes  while 
hunting'. 
R.,  750,  line  Ca[)tain  Laughlin  McLean  said  that  he  i)icked  up 
four  canoes  which  had  l)een  lost  from  another 
ves.sel. 

R.,  671,  line      CMi)taiii  McKicl  testified  that  during-  his  vovage  in 

on  i  o  ^     ,'       ~ 

ISS!)  ]u'  lost  three  canoes  about  the  18th  of  August. 

He  was  asked,  "Was  that  with  the  men  in  them,  or 

did  they  sinijdy  go  adrift?"  and  replied:   "The  men 

went  adrift;  we  lost  them  in  a  fog-." 
R.,6i5,iiue8.      Gustav   Hansen   stated    that  during"  the  cruise  of 

the  Atlcl;'  in   18S8  \w  I(>st  a  canoe  and  spent  a  week 

searching-  for  it,  and  that  he  was  compelled  for  this 

reason  to  cease  hiuiting^. 

Captain  W.  K.  Baker,  asked  as  to  the  contingencies 
R.,  728,  line  which  enter  into  the  nundjer  of  seals  taken,  stated, 


28. 


"  The  weathe)'  for  one  thing." 


Q.  And  rain? 

A.  Win<l  and  weather. 

Q.  And  fog-;  I  suppose  you  will  include  that? 

A.  Yes,  sir. 


.1. 

1).  W,' 

the  witness 

Q. 

Did  y( 

Bra  Kg,  this  i 

it  was  iuipos 

A. 

Yes,  I 

good 

sealing 

K< 

jlating 

(liuu'c,  the 

(}. 

Are  th 

A. 

No. 

Q. 

It  .just 

and  V 

stay  th( 

A. 

Yes,  s 

Q. 

And  t 

(lirec 

tion  i 

A. 

Yes,  s 

<.>. 

And  t 

A. 

Yes,  s 

(,). 

And  tl 

A. 

Yes,  s 

(.>. 

And  it 

A. 

Yes,  s 

(,). 

And  S( 

A. 

Yes,  s 

<.>. 

And  t 

or  a 

liundre 

A. 

Yes. 

(' 

apt.  Li 

-■av. 

■  the  f 

(,). 

Youd 

P.cri 

ig  Sea 

soali 

iig,  do 

A 

No. 

<.». 

As  a  u 

tiiid 

seals,  t 

A 

Note! 

Sea, 

next  y 

most  this  yc 

<.» 

If  yoi 

never  got  a 

A 

.  Certa 

mmm 


UNCERTAIN   CHARA'JTKR   OF    SEAL    HUNTING.  207 

,1.  l).  Warren,  after  listening'  to  the  testimony  of 
the  witness  lirag-g-  relating-  to  188(),  was  asked: 

Q.  Did  you  hear  the  testimony  of  tlie  witness  Captain  v„,,  284,  line 
IJrajiji,  this  morning,  regarding  the  days  in  that  year  when    3. 
it  was  impossible  to  do  any  sealing? 

A.  Yes,  I  heard  him  name  bad  days  for  him,  when  I  had 
good  sealing  days. 

1  {elating;  to  the  chance  of  finding-  sCiJ;*  in  abun- 
(liiucc,  the  witness  Alexander  liepp(  n  testified: 

(}.  Are  the  seals  thicker  in  one  quarter  than  in  another?  k.,  310,  line 

A.  No.  54. 

(^  It  Just  happens  t'lat  you  run  across  a  number  of  seals, 
and  stay  there  for  awhile? 

A.  Yes,  sir. 

Q.  And  then  you  go  sixty  or  seventy  miles  iu  another 
direction  ? 

A.  Yes,  sir. 

(^>.  And  then  lie  to  and  send  out  your  canoes? 

A.  Yes,  sir. 

(i|.  And  then  you  stay  there  a  day? 

A.  Yes,  sir. 

().  And  if  the  seals  are  thick  you  stay  there  two  days? 

A.  Yes,  sir. 

<^  And  sometimes  more? 

A.  Yes,  sir;  sometii'ies  more. 

i).  And  then  you  pick  up  your  canoes  and  move  off  sixty 
or  a  liundred  miles  in  another  direction? 

A.  Yos. 

('iipt.  Laughlin  McLean,  in  his  cross-examination, 

::ii\('  rile  following  testimony: 

<,>.  You  don't  mean  to  say  there  are  any  stated  courses  ui  R.,  332,  line 
Bering  Sea  on  which  a  vessel  sails  each  year  when  she  is    ^'^- 
st'aiiug,  do  you? 

A.  No. 

^•.  Asa  matter  of  fact,  you  go  at  random,  wherever  you  can 
liiid  seals,  do  you  not  ? 

A.  Not  exactly  at  random.  For  in8tance,if  I  go  into  Bering 
Sea  next  year  1  will  cruise  around  where  I  saw  them  the 
most  this  year.    If  there  are  none  there  li  will 

^).  If  you  ha]ii»eu  to  get  some  seals  last  year  where  you 
never  got  any  before,  would  you  go  there  this  year? 

A.  Certainly. 


208 


UNCERTAIN    CHARACTER   OF    SEAL    HUNTING. 


18. 


60. 


Q.  Then  you  would  go  where  you  thought  you  would  have 
good  luck;  i8  that  it? 

A.  Well,  I  would  i)rospect  arouud  until  I  found  some  seals, 
and  if  I  tind  enough  to  warrant  my  staying  I  would  stop. 

Capt.  C.  N.  Cox,  beinjj  cross-examined  as  to  the 

contingencies  which  affect  tlie  catch  of  seals  in  lierino 

Sea,  testified: 

R.,  608,  Hue     Q.  And  there  is  a  great  deal  of  luck  in  it? 
A.  There  is  a  certain  amount  of  luck. 
Q.  And  there  is  a  chance  of  finding  where  the  seals  are 
and  getting  them  1 
A.  Yes,  sir. 

In  that  portion  of  the  redirect  examination  of  this 

witness  which  has  ah-eady  been  quoted,  attention  is 

R.,  612,  line  called   to   liis    statement   that   he    considered    "the 

chances  are  whether  the  captain  stays  among  them 

[the  seals]  and  g-ets  them  or  not." 

Capt.  W.  Vj.  Baker,  already  referred  to,  testified  as 

follows: 

line     Q.  Would  you  say  there  was  any  luck  in  running  across 
the  seals  when  you  are  looking  for  them  on  your  schooner! 
A.  Yes;  a  good  deal.    They  call  it  luck. 
Q.  A  good  deal  of  luck,  is  there  not? 
A.  Yes,  sir. 

The  contingencies  which  enter  into  the  speculation 
of  how  many  seal  skins  may  be  secured  during  a 
hunting  cruise  in  Bering  Sea,  which  have  been  pre- 
sented in  detail  with  the  substantiating  evidence,  may 
be  briefly  summarized  as  follows :  The  smallness  of  the 
vessels  employed;  the  extraordinary  perils  of  a  voy- 
age to  and  cruise  in  Bering  Sea;  the  experience  and 
skill  of  the  master,  hunters,  and  crew;  the  unrelia- 
bility of  Indian  hunters  through  their  ignorance  and 
superstition;  the  frequent  inclemency  of  the  weather; 
the  prevalency  of  fogs  and  rain;  the  condition  of  the 
animals  when  hunted,  and  the  uncertainty  of  finding 
seals.  These  contingencies,  the  United  States  claim, 
are  of  such  a  nature  as  to  make  impossible  any 
method  of  computing  an  estimated  eaten,  which  will 
be  just 


R.,  728, 
34. 


NO  DBPINI 


mmmm 


!i 


nil 


NO  DE3FINED  "SEALING  GROUNDS"  IN  BERING  SEA. 

The  Argninieiit  on  behalf  of  Great  Britain,  in  that 
]ii)rtion  entitled  "The  character  and  extent  of  the 
stilling'  grounds  in  Bering  Sea,"  endeavors  to  do  away 
with  one  (^f  the  many  contingencies  that  enter  into 
tlu'  [troblem  of  estimating  a  probable  catch.  It  should 
tiist  be  observed  that  the  employment  of  the  words 
"sciiliiig  grounds"  is  a  misuse  of  language,  which  has 
liecome  cominon  to  sealing  captains,  and  has  often 
Well  adopted  by  others  through  thoughtlessness  or 
i;;ii(»i  aiice  of  the  character  of  seal  hunting.  The  word 
"urouuds,"  a])plied  to  a  sea  area,  conveys  the  idea, 
to  one  not  familiar  with  the  occupation  of  procuring 
sinlskius,  that  it  })artakes  of  the  nature  of  fishing 
iiTdinids,  im])lying  shoals  or  banks  abounding  in  va- 
riinis  species  of  fish,  lint  in  the  area  of  Jiering  Sea, 
where  seals  are  hunted,  the  charts  submitted  before 
tlu' Commission,  which  give  soundings,  demonstrate 
tlijit  no  such  ])anks  exist.  It  is  also  to  be  noted  in 
cniineetion  Avitli  the  misuse  of  the  term  "sealing 
mdunds,"  tJiat  there  is  a  similar  misappliance  of  the 
woYiU  "fishing"  and  "fishery"  to  the  occupation  of 
liiinting  seals.  That  sealing  partakes  of  none  of  the 
iniiicipal  features  of  fishing,  and  that  the  waters 
wlicic  seals  are  shot  are  in  no  way  analogous  to  "fish- 
iii^'  i tanks"  or  "fishing  grounds,"  but  })0ssess  rather 
tile  character  of  "whaling  grounds,"  are  evident  to 
tlidsc  who  have  become  familiar  with  seal  life  and  its 
destruction. 

The  Argument  on  behalf  of  Great  Britain  attempts 

to  establish  in  this  chapter  that  there  are  limited  areas 

ill  Hi  ling  Sea  where  seals  can  at  all  times  during  the 

B  s 14  ao9 


210 


NO    DEFINED    "SEALING    GROUNDS "    IN    BERING    SEA. 


iiumtlis  ot"  July  and  Au<>ust  be  tbund  in  sufficient 
abuiulance  to  warrant  this  Hij^li  Connnission  estiinnt- 
ino-  the  i)r()bable  number  of  skins  which  a  seized  or 


3l 


>ht  have  taken  if  her 


had 


warned  vesse 

not  Ijeen  interrupted. 

Tlie  portion  is  divided  into  two  })arts,  the  first 
deahng  with  supposed  h)caHties  v*'here  seals  may  be 
found  in  abundance  b}^  the  hunters,  and  the  second 
attem})ting-  to  demonstrate  hoAV  ])lentiful  the  seals  are 
in  these  areas. 

The  endeavor  is  made  to  establish  the  firsi  propo- 
sition bv  several  (piotations  from  the  case  of  the 
United  States  at  Paris,  which  mav  he  brieflv  stated 
to  affirm  that  seals  are  killed  by  the  hunters  at  long- 
distances  from  the  rookeries.  That  this  position 
assumed  in  the  case  of  the  United  States  is  correct, 
an  examination  of  the  testimony  taken  before  the 
Commissioners  fully  substantiates,  but  that  it  bears 
upon  the  (juestion  under  discussion  is  denied. 

The  next  class  of  evidence  produced  consists  of 
certain  charts  submitted  with  the  United  States  case 
Br.  Arg  57,  at  the  Paris  Trilnmal.  The  first  of  these  referred  to 
is  a  "migration"  chart,  which,  it  is  stated  in  the  Argu- 
ment on  behalf  of  Great  Britain,  "shows  that  the 
seals  in  July,  xlugust,  and  September  of  1891  were 
'  observed  by  the  })atrol  vessels  of  the  United  States 
to  have  been  mostly  in  the  ])osition  above  refeired 
to."  This  statement  is  undoubtedly  an  error,  as  the 
chart  to  which  reference  is  made  is  number  3,  in 
volume  3,  American  reprint  of  the  Paris  Tribunal. 
No  reference  is  made  in  that  chart  to  the  vessels 
which  patrol ed  the  sea  in  1891,  while  there  is,  at 
page  fi02  of  the  same  volume,  a  suimnary  of  the 
data  contained  in  the  chart.  That  it  was  of  necessity 
conventional  in  construction  and  merely  suggestive 
of  the  sup})osed  route  of  the  migrating  seals  from 
January  until  July  is  apparent  from  an  examinatiou 


of  the  data 
iiiorc,  in  tl 
piiov  105,  t 

From  the  f 
chart  has  be 
the  I'nited  S 

This  lattt 
luid  is  disci 
The  sec( 
"sealing  cl: 
this  chart  f 
placing  it  ii 
scattered  i 
21)0  miles 
platted,  bn 
indicate  th 
should  not 
seals  are  in 

With  tlii 
to  rest  upo 

The  thir 
where  Ih'i 
warned  in 
upon  the 
I'nired  Sta 
ing  vessels 
the  most 
neai'cst  to 
invarialdy 

The  fou 
die  Unitec 
ISST.  Tl 
paratively 
chart  was 

The  fift 
States  sell 
ii}»i)oars  t< 


NO    DEFINED    "SEALING    GROUNDS"    IN    BERING    SEA.  211 


lit'  tlu'  (lata  from  wliit'li  it  was  constructed.  Furtlier- 
iiidic,  ill  the  counter  case  of  the  United  Staios,  at 
piij>v  105,  the  following-  statement  aj)pears: 

From  the  further  data  mentioned  above,  a  new  migration    3^     '    '°® 
cliait  has  been  drawn,  correcting  and  modifying  the  one  of 
the  I'nited  States. 

This  latter  chart  superseded  the  one  put  in  evidence, 
iiiul  is  discussed  at  another  ])lace.  „     . 

The  second  chart  referred  to  is  the  one  termed  unel.'  ' 
"sealing  chart."  An  examination  of  what  a])pears  in 
this  chart  fails  to  disclose  aii}'  purpose  whatsoever  for 
placing  it  in  evidence.  That  the  seals  are  thoroughly 
scattered  in  Bering-  Sea  at  distances  of  more  than 
21)0  miles  from  the  Islands  appears  from  the  data 
platted,  but  the  conventional  use  of  short  lines  to 
iiidicate  the  number  of  seals  counted  during  a  dav 
should  not  be  misconstrued  into  a  statement  that  the 
seals  are  in  bands  of  that  number. 

With  this  explanati«>n,  the  Uniled  States  are  willing ^^^-.^^"^S'  58, 
to  I'cst  upon  the  facts  disclosed  b\  the  "sealing  chart." 

The  third  chart,  on  which  are  platted  the  positions 
wlure  liritish  and  American  vessels  were  seized  or 
warned  in  the  years  1886,  1887,  and  1889,  bears 
upon  the  question  of  the  skill  and  industry  of  the 
riiited  States  revenue  oflrtcers  in  intercepting  the  seal- 
ing vessels  after  their  entrance  through  Unimak  Pass, 
the  most  easterly  of  the  passes,  and  therefore  the 
nearest  to  Victoria  and  San  Francisco,  and  almost 
invMriai)ly  used  by  sealing  craft  when  entering  the  sea. 

The  fourth  chart  referred  to  is  that  of  the  cruise  of    fine  is!     ' 
the  United  States    schooner  Elleti  in  the  season  of 
ISST.     The  sea  area  covered  by  her  cruise  is  com- 
paratively limited  and  her  catch  as  shown  by  the 
chart  was  inconsiderable. 

The  fifth  chart  is  that  of  the  cruise  of  the  United    une^fo.    ' 
States  schooner  Annie  in  the  same  year.     The  vessel 
itpl  tears  to  have  never  approached  within  120  miles 


I 


212 


NO    DEFINED    "SEALING    GROUNDS      IN    HERING    l*EA, 


lir.  Arg.,  58, 
lino  I.M. 


Br.  Atsx.,  '>», 
Hue  2(>. 


Am.      Eep., 

vol.  7. 
Br.  Ar}j.,  58. 
line  29. 


Am,     Rep., 

vol.  7. 
Br.  ArR.,  58, 
line  34. 

Am.   Rep. , 

vol.  7. 
Br.  Arg.,  58, 

liuo  40. 


of  till'  I*ril)il(>f  Islimds.  'V\w  -.WiVA  covered  in  licr 
cruise,  Avliicli  lasted  forty-tour  days,  exteuds  for  12(1 
miles  uorlliwest  from  Akutau  Pass  and  about  tlio 
same  dista'jce  soulliwest  froiu  a  line  drawn  from 
Unimak  l*ass  to  the  I'rihilof  Islands. 

'^riie  sixth  chart  is  of  the  cruise  of  the  British 
schooner  Alfred  Addiiis,  one  of  the  vessels  seized  in 
1887.  An  examination  «tf  the  course  which  the 
schooner  look  after  enterin<>'  Herin<>-  Se.i,  compared 
with  that  of  the  KHcit  and  the  Annie  already  referred 
to,  shows  that  the  area  co'  ered  was  substantiallv  dis- 
tinct and  separate  from  the  other  two. 

The  .seventli  idiart  is  that  of  the  <'ruise  of  the  Aihi, 
one  of  the  Ih'itish  vessels  seized  in  1887  by  tlie 
United  States,  and  for  which  a  (daim  is  made  before 
this  Ilio'li  ('onnnission.  The  cruise  of  this  vessel  was 
entirely  ditierent  from  tlufse  of  the  other  three  schoon- 
ers referred  to.  She  covered  durin<>-  the  ])eriod  from 
loth  of  .luly  to  the  'ioth  of  Au}^-ust,  when  she  was 
seized,  an  area  extending'  loO  miles  northwest  from 
Unimak  Tass  and  fully  100  miles  west  from  164" 
30'  west  h>n_L>itude. 

The  eifihth  chart  referred  to  is  chart  No.  1,  counter 
case  of  the  United  States  at  Paris.  It  demonstrates 
that  in  connection  with  the  patrol  of  the  sea  in  the 
year  1891  the  only  coalinj^-  station  in  the  eastern  pm1 
of  lierin^  Sea  is  at  Unalaska,  in  Iliuliuk  Harbor. 

The  ninth  chart  referred  to  is  No.  3,  counter  case 
of  the  United  States  at  Paris,  and  establishes  the  same 
fact. 

The  tenth  chart  is  No.  6,  counter  case  of  the  United 
States  at  Paris,  and  is  of  value  in  showing  how  far 
seals  wander  in  search  t)f  food  from  the  Pribilof 
Islands,  bearing  in  mind  that  the  dots  used  to  indicate 
the  seals  seen  do  not  represent  herds,  but  the  number 
observed  by  a  vessel  in  any  given  day.  For  example, 
at  55°  10'  north,  and  168°  east,  there  appears  to  be 


NO    DKKINKD    "HEALIN(J    (MiOUNDS      IN    HKRING    SEA. 


213 


;i  iii;iss  of  sciils.  'I'lic  Jiroii  ('()V(*ro(l  ])v  tlu!S(;  (loiu^on- 
riiiii;i!  (lots  is  20  iiiik's  loiio-  siiul  12  to  15  wido.  'V\w. 
miiiihcr  of  (lots  is  102,  or  iiii  }i,vi'ni<i'(i  (►f  jihoiit  olio 
sciil  to  every  2  s(|iiiir('  niiics  nqjresciited. 

The  clevoutli  cluirt  ret'crrcd  to  is  the  corrected ^'■.•,  ^^""i?' ^-» 
"iniii'i'iitiou  clisirt  siiniiiitted  with  tiu;  coiiutcM'  cjise  ot 
the  Tuited  States  at  Paris.  TIk;  stateineiit  iis  to  how 
jtiiiodiHes  tlie  first  iiiij^ratioii  ciiartsiihiuitttd  witlitlie 
ciisc  of  tlie  United  State.s  is  Hubstantially  correct, 
iilthouj^li  there  appear  included  the  months  of  Xovein- 
licr,  I  )(!ceiiiber,  and  January,  wliicli  are  not  shown  in 
the  first  chart.  The  same  conventional  method  is 
ciuployed  in  phittino-  the  course  of  the  mijiratin*^ 
iiiiinials.  The  juirpose  for  wliich  these  two  charts  are 
suhmitted  is  indicated  In  the  Ar<>ument  on  behalf  of 
(iivat  Britain  in  the  following  laiif^uage: 

It  sufficiently  indicates,  as  well  as  the  migration  chart  Br.  Arg.,  59, 
lii'st  referred  to,  the  comparatively  limited  space  between    line  i. 
tlie  i)ass  of  the  Aleutian  Islands  and  the  Pribilof  group,  in 
which  seals  are  found. 

Reference  to  the  data  from  wdiicli  these  charts  were^™-^®P^^'°^ 
prepared,  j^'iven  in  the  case  of  the  United  States  at 
I'aris,  shows  that  tlie  charts  only  referred  to  the  seals 
iiiitsidc  of  Jiering-  Sea.  There  is  no  warrant  for  the 
statement  contained  in  the  British  Arg-ument  as  shown 
liy  the  data  in  the  light  of  which  the  charts  must  be 
txamiiied,  and  there  is  no  o-round  for  the  contention 
on  the  part  of  Great  Britain  tliat  a  "stream  of  seals" 
exists  between  the  eastern  jiasses  of  the  Aleutians 
iiiiil  the  Pribilof  Islands. 

Furthermore,  the  extract  from  the  case  of  the  ^^.■^''|-' ^®' 
I  lilted  States,  quoted  in  the  Argument  on  behalf  of 
Great  Britain,  in  connection  with  the  foregoing  state- 
ment demonstrates  conclusively  that  the  chart  re- 
tened  to  seal  migration  outside  of  Bering  Sea,  the 
•lata  from  which  they  were  prepared  being  particii- 
larK'  refeiTed  to  in  the  extract. 


214 


NO    DEFINED    "SEALING    GROUNDS      IN    BERING    SEA. 


lir.  Arg.,  50. 


Sen.  Doc.137, 

pt.  l,,p.  52. 

lit.  Arg.,  107. 


Br.  Arg.,  59, 
line  25. 


Br.  Arg.,  59, 
line  33. 


E.,  1257,  line 
15. 


Refcrences  are  nuide  in  tlio  opjjosiiio-  Aro-umoiit  to 
certain  maps  i)repare(l  b}'  Mr.  C.  11.  Towiiseiul,  <it'  the 
United  States  Fisli  Commission.  'J'lie  first  of  tliesc 
contains  data  so  meafjer  as  to  be  jn-actically  of  no  value 
for  the  pnrpose  for  wliicli  it  is  cited.  '^Plie  loos  of  onlv 
two  vessels  are  used  for  the  years  ISSO  and  18H7— 
those  of  the  Mary  Ellen  and  Faronrifv — as  is  shown 
by  reference  to  the  data  from  which  they  are  platted. 
It  would  a])pear  that  in  this  portion  of  the  liritisli 
Argument  the  Favourite  remained  on  the  so-called 
"sealint)-  grounds"  in  18H(),  which  is  a  ])osition  con- 
trary to  the  one  assumed  in  discussing  that  claim  in 
detail.  ^ 

The  second  Townsend  map  is  based  on  data  for  the 
year  1894,  and,  though  conventional  in  construction, 
it  shows  one  important  fact,  namely,  the  area  of  sea 
over  which  sealers  hunt. 

The  third  maj),  for  1895,  is  useful  for  the  same  pur- 
pose. The  references  to  the  month  of  Sei)tember  in 
1894  are  bonie  out  bv  the  data,  but  the  year  is  so 
remote  from  the  period  of  this  discussion,  and  the  evi- 
dence as  to  catch  and  duration  of  the  season  having 
been  specifically  limited  by  the  Commissioners  to  the 
year  1890,  the  use  of  this  maj)  for  any  puq)Ose  other 
than  to  show  the  extent  of  sen  over  which  seals  are 
distributed  is  unwarranted. 

The  next  evidence  advanced  in  relation  to  localities 
where  seals  are  "always  to  be  found  in  abundance"  is 
an  extract  from  the  deposition  of  a  pilot,  who  was  em- 
ployed in  the  Revenue-Marine  Service  of  the  United 
States  for  seven  years  })receding  August,  188G,  which 
he  gave  at  Sitka  in  that  year. 

It  is  first  to  be  noted  that  1886  was  the  first  year 
when  the  revenue  cutters  of  the  United  States  were 
employed  in  cruising  for  sealing  vessels. 

In  the  second  place,  an  examination  of  his  deposi- 
tion shows  that  lie  had  peculiar  views  in  recard  to 


seal  life. 


regar( 


The  chi« 
(•stiililish  c 
Clin  with  i 
upon  oral 
divided  in 
stiitciiients 
tioiis  wher 
the  Argun 
(•(insiderat' 
ill  the  Arg' 
is  MS  follo\ 

Bragg 
(erroneous 
as  I'dst  of 
AVarren 
year  188G 
An  exa 
which  Wji 
sen  in  hii' 
tndc,  and 
iris  apj)r< 
east  and  \ 
(VLear 
!I0  miles 
as  120  m 
tore,  an  a 
Uandai? 
tioii  at  al 
lle])pei 
»T.s7,  norf 
hut  one  ( 
lof  IslaiK 
.Moss  ii 
Britain  a: 
the  log  o 
more  va 
The  log 
soiifhwest 


NO    DEFINED    ''SEALliS'G    GROUNDS" 


IX    HERING    SEA. 


215 


llK'llt  to 

I,  of  the 

of  these 

lo  valiK' 

of  onlv 

18S7- 

s  shown 

platted. 

Jirltish 

)-ealled 

loii  con- 

daiin  in 


Tho  chief  endeavor  on  the  part  of  Great  Britain  to 
(Still (lisli  certain  defined  arean  of  sea,  in  which  seals 
Clin  with  api)roxiniate  certainty  be  found,  is  based 
u]Miii  oral  evide  ice.  'restimony  <if  this  class  is 
divided  into  tu'o  heads,  those  coniprisin<»-  o-eneral 
stiitcments,  and  those  s])ecifyin<i'  the  areas  and  ])osi- 
tioiis  where  seals  were  taken.  Upon  this  latter  class 
the  .Vrjiument  on  behalf  of  Great  Britain  rests  in  its 
consideration  of  this  subject.  The  witnesses  quoted 
in  ihe  Arjjfument  and  the  substance  of  their  testimony 
is  MS  follows: 

|{i-jioo-   mves  his  position  durinn-  the   year   1886 
(enoneouslv  cited  as  1888  in  the  British  Arg-unient)  ^^'■•Arg.,60. 
as  nist  of  tfie  Pribilof  Islands  and  south.  ^5^^'  "°* 

AVarren  gives  his  direction  from  the  islands  for  the  R-,  -'8i. 
year  188fi  as  southeast  and  south. 

An  examination  of  the  cruise  of  the  schooner  of  ^•'^^*- 
wliicli  Warren  was  master  shows  that  he  covered  the 
se;i  in  his  operations  from  54^  to  5(5°  5'  north  lati- 
tude, and  from  164°  10'  to  168°  30'  west  longitude, 
it  is  ap})roximately  an  area  of  sea  extending- 150  miles 
oast  and  west  and  120  miles  north  and  south. 

O'Learv  ffives  his  position  in  1886,  durinj)- July,  as  ^•' -^2,  lines 

.  ..i^  ^  1  23 

!>()  miles  west  of  the  Pribiu)f  Islands,  and  in  August 
as  120  miles  south  of  the  islands;  covering,  there- 
fore, an  area  over  200  miles  in  length. 

Uandase,  on  the  Theresa  in  1886,  g-ives  her  posi- ^ig^^^'  ""® 
tiou  at  about  125  miles  south-southeast  of  the  Islands. 

Heppen  states  that  the  vessel  he  was  upon  sealed 
»v s/,  north.,  east,  and  south  of  the  islands.     He  g^ives R,  3io,  line 
but  one  distance,  «and  that  150  miles  from  the  Pribi- 
lof Islands. 

.Moss  is  cited  in  the  Argument  on  behalf  of  Great  ^^jj^j^^^g'  ^*' 
liritain  as  to  the  cruise  of  the  Favourite  in  1886.     As  Ex.    No.'    8 
the  log  of  the  Favourite  is  in  evidence,  it  is  of  much    ^'^•^•^• 
more  value  than  any  statement  made  by  a  hunter. 
The  log  discloses  that  the  Favourite  sealed  to  the 
southwest,  south,  and  southeast  of  the  Pribilof  Islands, 


2lfi  NO    DEFINED    "SEALING    GROUNDS"    IN    BERING    SEA. 


R.,   671 
60. 


'     covering'  an  area  cxtt'iiding-  «>vei'  175  iiiilcH  from  east 
to  west. 

R.,  526,  lino  Ujjyiior,  Oil  tlie  Sdn  D'n'ffo,  Sealed  to  the  south  mt] 
sotdlicdst  of  the  ishmd.s. 

^58ri7;]i!      ^I^'vt'i',  master  of  the  Vdndcrhilf  m  l.S8(),  stated  tliat 
line  47.       he  sealed  to  the  eastward,  itoiilnvard,  and  westward  oi 
the  Prihilof  Islands. 

McKiel,  master  of  the  ^[arl|  Tai/Ior  in  1887,  j^-ives 
no  actual  position  as  to  his  sealing-  in  that  year, 
although  it  is  stated  in  the  British  Argument  that  lie 

^HiieT'  ^^'  "<iX])lains  that  he  worked  in  the  vicinity  of  hd'^  north 
latitude,  177°  T  west  longitude."  Tlie  testiinonv 
of  witness  was  that  he  sealed  trom  40  to  100  miles 
west  of  a  line  drawn  from  IJnalaska  to  the  Prihilofs. 
It  would  appear  that  his  position  was  chiefly  south- 
west and  south  of  the  Islands,  and  the  area  he  covered 
about  GO  miles  from  east  to  west  and  over  150  from 
north  to  south. 

Moss  gives  the  ])osition  of  the  Kate  in  1887  as  south 
of  the  Pribilof  Islands,  and  distant  30  or  40  miles 
therefrom 

R.^^526,  line     ^.^y^^^.y^  ,,,^  ^lie  AUie  I.  Alffer  in  1887,  gives  his 

position  as  south  of  the  Pribilof  Islands. 
R.^^8i8,  line      ]\[i,i(3,.^  master  of  the  Penelope  in   18.S7,  gives  his 
position  as  southwest  of  the  Islands,  and  distant  over 
100  miles  therefrom. 
'^58^-'"^r3T      Meyer,  who  is  not  cited  in  the  Argument  on  behalf 
lino  47.     '  of  Great  Britain,  and  who  was  master  of  the  Vander- 
hilt  in  1887,  states  that  he  sealed  east,  north,  and  west 
of  the  Islands. 
^■io!?28,iine     W.  E.  Baker,  of  the  Viva  in  1888,  gives  his  position 
65-  as  south  and  west  of  the  Islands,  and  from  60  to  90 

miles  distant  from  them,  and   adds  that   he  sealed 
.     "  principally  west." 
30.    '    "       Laughlin  McLean,  master  of  the  Favourite  in  1888, 
gives  his  i)08ition  for  that  year  as  west  and  south  of 
the  Pribilof  Islands. 


R.,  333,   lino 
65. 


NO    DEFINKD    "SEALING    GROUNDS      IX    15EKIN0    SEA. 


217 


ll.'U'kett,  niiister  of  tlio  A  utile  ('.  ^foorr,  ^i'ives  his 
|iiisiti(ni  for  1S88  (or  1H!)())  at  a  point  about  100 
miles  iKirthict'st  of  the  Ishuids. 

The  Triiiiiipli,  ill  LSSS,  according' to  the  jiositious  of 
l;ititu(k*  aiul  longitude  jiiveii  by  E.  (_'.  Baker,  sealed 
siiiifli  of  the  islands  over  an  area  100  miles  north  and 
sdiifli,  and  the  same  distance  casf  and  irrsf. 

(icrow,  who  hunted  in  ISSS,  states  that  the  vessel 
scaled  in  cvertj  (lircctioN  from  the  I'ribilof  Islands. 

I  hiiisen  is  eited  in  the  Arj>ument  on  behalf  of  Great 
jlrltain  as  stating-  that  "he  hunted  to  the  southward  and 
westward  of  the  Pribilof  Islands,  about  <)0  to  70  miles 
ilistMiit;  alter  that,  a  little  to  the  east.  The  direction 
was  about  north-northwest  of  Unimak  Pass.  '^Fliis  was 
in  1SS8."  A  reference  to  the  marginal  citation  of  the 
Record  discloses  an  error  in  this  summary  of  his  testi- 
iiioiiy,  the  witness  in  fact  stating  that  he  hunted  "par- 
ticularly to  the  southwanl  and  fcesfirard,  and  in  the 
latter  part  of  the  year  to  the  cnstiranl."  His  exami- 
nation shows  also  that  he  was  speaking  of  the  year 
Iss!). 

h'aynor,  in  ISSJI,  gives  the  ])osition  where  he  was 
warned  as  about  100  miles  south  of  the  Pribilof 
Islands, 

\y.  E.  Baker,  of  the  Viva  in  188f),  sealed  mostly 
siiiitli/rfird  and  u'cstivdril  of  the  Pribilof  Islands,  and 
ijistant   60  to  'JO  miles  from   them,   but  principally 

Laughlin  McLean  sealed  to  the  south  of  the  Pribi- 
lof Islands  in  1881),  and  about  100  miles  distant  from 
tliein. 

I'olger,  master  of  the  Penehpe  in  1880,  states  that 
lie  sealed  to  the  icest  and  east  and  south  and  northivest 
of  the  Islands. 

Ihu'kett,  master  of  the  Annie  C.  Moore,  gives  his 
l)<»sition  for  1890  (or  1888)  about  100  miles  northwest 
of  the  Pribilof  Islands. 


H.,  061,   lino 
64. 


K.,  702. 


K.,     1493, 
line  22. 

Br.  Arg.,  64, 
line  18. 


K.,  616,   line 
26. 


R.,  528,   line 
37. 


R.,  724,  line 

10. 
K.,  728,  line 

55. 
R.,  731,  line 

40. 


R.,  1083,  line 
11. 


R.,  661,  line 
30. 


218  NO    DEFINED    "SHALINO    GROUNDS"    IN    BERING    SEA. 


!{.,  724,  line 
10. 

R..  726,  lino 
27. 


Br.  Arg.,  64, 
line  :<5. 


R,,  107!»,  lino 
60. 


R.,  758,  line 
40. 


R.,  771,  line 
37. 


W.  K.  linker,  mnstcr  of  the  Vira  in  1S90,  sciilcd  to 
i\w.  ivfsfinird  n\u\  soi(fliw((nlni'  tlic  Isljiiuls,  jmkI  J)0  miles 
distant,  and  in  the  latter  part  of  the  season  from  4ti 
to  <j()  miles  rosf,  in  which  position  he  aj)|)arentiy  iiail 
his  best  hnntin<f.  'i'he  extreme  ])oints  of  his  cruise 
are  cited  in  the  hritish  Arjiinnent  as  hein^-  I'tO  in  :2lli) 
miles  ((jKiii. 

Steele,  master  of  the  Thcrrsn  in  1890,  states  tliiit 
he  hnnted  to  the  ircsfii-dnl  and  snidhward  of  the  I'rihi- 
lof  Islands  and  in^ar  Ho<^oslof.  I'he  extent  of  the  sea 
covered  l)v  him  in  his  seal  luintinji'  a})})ears  to  have 
been  over  "200  miles  norili  and  mntli. 

William  Cox,  master  of  the  S(ij)})Iii!v,  states  that  liis 
best  seal  huntin;^"  in  1890  was  to  the  northwanl  nnd 
wesftrartf  of  the  Islands,  althoug-h  he  "was  all  over  the 
sea,"  goinii'  80  or  90  miles  east 

Capt.  William  O'Learv,  a  witness  sworn  on  behalf 
of  Great  Britain,  states  that  in  1888  he  was  west  of 
the  islands,  and  that  he  returned  there  in  1890,  Init 
did  not  iind  the  seals  "so  i)lentiful."  He  then  sealed 
to  the  cast  ward. 

Cai)taiii  MirnL'i",  a  witness  sworn  on  behalf  of  the 
United  StateK,  tostitied: 

I  sealed  Mitiivly  around  the  islands. 

t^.  You  mean  north,  soiiih,  east,  and  westf 

A.  Yes,  sir, 

Q.  How  far  away  from  them? 

A.  The  nearest  I  was  to  the  islands  was  40  miles. 

Besides  this  specific  class  of  testimony  there  is  other 
of  a  111  M-e  general  nature,     liut  two  references  are 
Br.  Arg.,  66,  niade  in  the  opposing-  Argument  to  this  class  of  testi- 
line  35.      moiiy ;  one,  an  abstract  of  the  evidence  of  A.  B.  Alexan- 
der, of  the  United  States  Fish  Commission,  which  is  in 
substance  that  Bering-  Sea  during  the  months  of  July 
Br.  Arg.,  61,  <^^iid  Augiist  is  frequented  by  the  fur  seal ;  the  other,  a 
line  21.      summary  of  the  testimony  of  Capt.  Alexander  McLean, 
stating  that  his  best  hunting  was  about  60  or  70  or 
even  90  miles  from  the  Pribilof  or  Aleutian  Islands. 


R.,  558,   line 
16. 


NO    IIKFIXKI) 


"HEALINC!    (IKOUNns"    IN    IJERINO    SEA. 


2111 


«'!ll('(l  til 

iXhiiilo 

troiii  4ii 

Itlv  llilil 

s  ci-uisc 

0  to  M 

tes  tliiit 

e  I'riln- 

tlic  sea 

to  liavc 

1  I  ion   the   sinnc   \);\*iv   in    the    Kccord  vvliero   this 
>tar»'iii('nt  of  Captain  Mclx'an's  appears  the  following' 

is  t'liund: 

• 

i).  Can  you  in  your  ohserviition  in  st'siliiig,  IVoiu  IHHli  down, 
tell  from  the  seasons  ])r»'(;o<ling  whotluM-  yon  will  in  the  coin- '^v   ''''  ''"® 
iiif;  season  be  able  to  Hnd  seals  in  any  particular  place  or 

ZOIIf  .' 

A.  I  don't  believe  there  is  any  certainty.  I  kept  the  book 
of  reference  for  this  i  <  .ison. 

().  Von  kept  the  book  of  references  where  you  made  good 
catclies  of  sealing! 

A.  Yea,  sir, 

(}.  And  you  have  been  there  again  in  the  same  places? 

A.  Yes,  sir;  placed  it  on  the  chart  thinking  it  might  be  of 
some  use  to  me,  but  found  it  was  not. 

().  Did  you  ever  And  any  rule  whereby  yon  could  tind  the 
seal  the  second  time? 

A.  The  only  rule  I  have  found  was  that  if  they  were  not  in 
one  place,  to  go  and  hunt  for  them. 

Again,  in  the  case  of  Captain  Raynor,  there  a])])ears  ,5^,  ^      ^53 
ill  the  oj)posin<r  Argument  an  extract  from  his  cross-    line  25. 
eNjiMiination  to  the  effect  tliat  lie  was  in  the  })ositioii 
170^  west  lonjiitude  and  .of)"  north  latitnde,  when  lie 
w;is  ordered  out  of  tlie  sea,  because  that  is  a  seaJin// 
urdiiiid.     The  extract  is  closed  with  tlie  followin*^*: 

Q.  Of  course,  and  you  went  where  you  knew  the  sealing 
ground  would  be? 
A.  Why,  certainly. 

riie  questions  immediately  followini*-  this  are  not 
eitcd.  They  are  of  far  more  importance  tlian  the 
siiinle  statement  as  to  liis  position  when  warned. 
After  the  answer  (pioted,  Ca])tain  Raynor  was  asked 
whether  the  sealing  ground  was  confined  to  certain 
limits,  to  which  he  replied:  "Yes;   but  those  limits k>528,  liuo 


jplied: 

art'  anywheres  from  the  northeast  of  the  islands  up  to 
tile  northwest  of  the  islands  and  to  the  southivard  down 
towards  the  Pribilofs." 

(i>.  The  Aleutian  Islands,  you  mean  ? 
A.  Yes,  sir. 


60, 


220 


NO    DEFINED    "SEALING    GROUNDS"    IN    BERING    SEA. 


R.,  1728, 
28. 


R.,1728, 
62. 


R.,  1729, 

1. 
R.,  1731, 

51. 


Hue 
line 


R.,  257, 

29. 
R.,  1766, 

30. 
R.,  1770, 

20. 
R.,  1771, 

60. 
R.,  1767, 

34. 


R.,  1779, 
2. 


lie.sides  tliose  witnesses  referred  to,  Captain  Meyer, 
of  the  Vaudohllt,  testified  as  fallows: 

Q.  Captain,  from  your  experience  in  the  years  188!l  and 
linei8S7,  do  yoii  know  of  any  place  in  the  sea  where  you  cau  go 
ill  one  year  and  find  seals  and  then  return  in  the  following 
year  and  be  sure  of  finding  seals  thero? 

A.  No,  sir;  I  do  not. 

At  another  phice  in  his  exaniiiuition  ap})ears  the 
foHowing-: 

line  Q.  And  if  you  found  seals  in  a  certain  locality  in  July, 
could  you  go  back  there  in  August  and  be  sure  of  finding 
them? 

A.  No,  sir;  I  couldn't. 

Q.  Have  you  tried  it? 

A.  Yea,  sir;  I  have  tried  it  several  times. 

PTe  added  that  he  did  not  find  seals  at  those  places. 
In  his  cross-examination  the  witness  was  asked  as 
to  his  cruise  in  1887,  and  replied:   "Somewhere  in 
the  same  locality  as  in  other  years  in  search  of  seab." 
He  was  then  asked,  "You  did  not  trv  anv  new  around 
at  all  V  to  which  he  answered,  "I  tried  new  ground 
every  day." 
'"*      Owen  Thomas,  a  witness  sworn  several  times  ou 
^'^ebehalf  of  (irreat  Britain,  who  luid  been  pilot  ou  the 
VmeCarolcnd  in  the  sprinj:;-  of"  188G,  hunter  on  the  Black 
y^^^Didiiiond  tlie  same  year  on  her  northern  trip,  mate  of 
the  Pathfinder  in   18<S7,  master  of  the   Pffhliiidar  in 
""M8S8,  and  master  of  the  Bhuk  Dhmwd  v\  1889,  testi- 
fied in  his  redirect  exiunination  as  follows: 

^'"^  Q.  Row  is  it  that  your  catch  was  limited  to  about  5(K) 
skins  in  18.SS  on  the  I'atlifindey  in  Bering  Sea? 

A.  Well,  1  could  not  strike  the  seals;  I  could  not  get 
amongst  them,  I  suppose. 

If  the  sealin<^-  <>Tounds  are  "well  known,"  as  as- 
serted in  the  Arj^iiment  on  behalf  of  Great  Britain, 
it  is  a  matter  of  conjecture  how  such  an  experienced 
sealer,  as  the  witness  Thomas  claimed  to  be,  could 
have  avoided  making-  a  successful  voyage. 


■Hi 


NO    DEFINED    "SEALING    GROUNDS"    JN    BERING    SEA.  221 


CJotstord,  one  of  the  luuiters  on  the  Carolena  in  188fi, 
iiiid  iit'terwardn  en<i-af>'ed  on  other  sealing*  vessels,  was 
iiskcd,  "Do  yon  think  that  in  leering  Sea  there  is^-  3'^^'  ^>°® 
iiiiv  place  or  number  of  ])laces  where  you  can  g"o  as 
;i  sure  thin<>",  and  <>et  seals  every  year?" — to  which 
he  iiiiswered:  "1  do  not  think  there  is  any  sure 
|il;ic('. 

A;i:ain,  replying-  to  a  question  as  to  the  certainty  of 
Hvtt!iii>-  seals,  he  answered,  "It  is  certain  you  will  g'et^^--g^^'''  ''°° 
sials,  but  there  is  no  certainty  about  tlie  amount." 

A.  H.  Alexander,  already  referre<l  to,  who  has  had 
nil  extensive  exi)erience  in  liering'  Sea,  and  made  two 
sciiling  trips  in  tlsose  waters  for  scientific  })urposes, 
w;is  asked,  "Is  there  any  locality  Avhere  seals  can i^-  47(5,  lino 
always  be  found?"  to  which  he  replied,  "1  know  of 

IMllU'." 

('a])t.  C'  N.  Cox,  a  witness  on  l)ehalf  of  the  claini- 
iiiir>,  in  his  direct  examination,  g-ave  the  following" 

testimony: 

<^  How  do  yon  lind  the  seals  tliere! 

A.  St;attered  about. 

Q.  Uncertain  gronnds ' 

A.  I  seldom  find  them  on  tlie  same  ground. 

('a])tain    Folg'er,   who   was   sul)])o'"aed   bv  Great 
liritaiii  and  the  United  States,  testilied  as  follows: 

'v>.  From  yonr  experience  in  Bering  Sea,  Captain,  will  youR.,  1082,  line 
^('11  the  Commissioners  whether  or  not  there  is  any  one  place    *'^- 
in  Hcnng  Sea  where  you  will  alvv'uys  And  seals? 

A.  No,  sir;  not  where  yon  will  always  find  them. 

(}.  Is  there  any  such  place'!" 

A.  The  seals  are  everywhere,  according  to  where  the  food 
is;  w'icrever  the  food  is,  that  is  where  the  seals  are. 

'i>.  1  •o  they  follow  the  food  1! 

x\.  Yes,  sir. 

Alexander    stated   that   the  seals  are    practically ^{i*^'^'  ""^ 
surface  feeders,  and  that  their  tood  consists  of  inigra- 
torv  tish. 

Taj't.  W.   PI   Baker   stated  that   lie   thoi.ght  the  ""g's!^®' ^"" 
liuiitinjr  grounds  changed  from  year  to  year.     In  this 


R.,  (513,   line 
15. 


222 


NO    DEFINED 


"sealing   grounds"    in    BERING    SEA. 


N( 


m 


E.,  726,  line 
60. 


R.,  758,   line 
45. 


connection  attention  is  called  to  the  experience  ot 
Captain  O'Leary  in  1889  and  18U0,  already  cited. 

In  a  statement  made  before  the  collector  of  cus- 
toms at  Victoria  in  1892,  and  which  Captp-ii  Baker 
in  his  examination  testified  was  true,  appears  the 
following-; 

I  have  noticed  also  that  they  [the  sealsj  o^  n,'*  'a:it 
ground  from  time  to  time,  and  where  you  nua  thepi  this 
year  you  may  not  find  them  the  next.  This  was  very  re- 
niarltable  during  the  year  1890,  for  the  seals  were  all  found 
to  *he  eastirard  of  the  Pribilof  Islands,  while  in  the  former 
years  they  were  all  found  to  the  westward. 

With  this  statement  the  testimony  of  Captain  Wil- 
liam Cox  is  sig-niticant: 

Q.  Where  did  you  tish  in  1890? 

A.  I  was  all  over  the  sea. 

Q.  Did  you  go  to  the  westward  of  the  islands? 

A.  I  did,  air. 

Q.  How  far  east  did  you  go? 

A.  About  90  miles. 

Q.  Did  you  catch  seals  there? 

A.  I  did  not  see  any. 

Q.  In  wliat  year  if 

A.  1890. 

Q.   You  eantfhi  none  emtf 

A.  None. 

When  two  such  prominent  witnesses  on  behalf  of 
the  claimants  differ  so  widely  as  to  the  locality  where 
seids  could  be  taken  in  1890,  there  is  but  one  concki- 
sion  to  be  drawn,  that  there  is  no  persistency  in  the 
abundance  of  seals  in  J,ay  sea  area  even  during  die 

Br.  Arg.,  60,  sf"»i<^'  season. 

Alexander  Rejjpen,  a  witness  relied  u})on  by  Gi  * 
Britaininconnection  with  this  (piestion  of  the  locality 
where  seals  are  taken,  testified  as  follows : 


line  47. 


R.,  309,  line 
34. 


Some  days  we  found  lots  tf  sols  and  ao.ae  days  none. 
Q.  Right  in  the  same  place? 

A.  At  diflerent  places.    Wc  never  s*^upped  in  one  place 
all  the  time. 


(I  Are  1 
A.  No,  g 

yuii  stiiy. 

('apt.  ] 
mony: 

Q.  If  yc 

never  got 
A.  Cert; 
Q.  Thet 
A.  Well 

aiul  it'  I  fc 

('a})tai 
veai's  ha 
l-'rom 

that  the 
Ideality  i 
raining  f 


iii<i- 


Iliiviiii 
Sen  lU'e  \ 
liow  pier 


i 


mmm 


iA. 

'  cited. 
>!•  of  cus- 
■A  Baker 
>0'irs  the 


lii^r  (  tbis 
as  very  re- 
e  all  found 
the  former 


)taiii  Wil- 


NO    DEFINED    "SEALING    GKOUNDS"    IN    BEKING    SEA. 


223 


•belialt"  of 
lity  where 
le  coiiclu- 
icy  ill  the 
luring-  the 

by  Gi  ' 
•e  localit  ■ 


8  none, 
one  i)lace 


il 


{).  Are  there  auy  particular  hunting  grounds  in  the  seafR-,  310,  line 
A.  Xo,  sir,  1  do  not  think  it;  wherever  you  find  tlie  seals    ^^• 

you  stay. 

('iil)t.  Laug-hliii  McLean  gave  the  following-  testi- 

iiudiy: 

(}.  If  you  happened  to  get  some  seals  last  year  where  you  K.,  332,  line 
never  got  any  before,  would  you  go  there  this  yearf  ^7. 

A.  Certainly. 

Q.  Then  you  would  go  where  you  had  good  luck ;  is  that  It? 

A.  Well,  I  would  pvosf^ct  around  until  I  found  some  seals, 
and  if  I  found  enough  to  wurrant  my  staying,  I  would  stop. 

("iiptain  Raynor  stated  tliat  he  never  in  successive  R.,  524,  line 
veins  had  found  seals  in  the  same  place.  ^' 

I'Voui  this  sununary  of  the  evidence  it  is  apparent 
that  tlie  sealing  vessels  are  not  confined  to  any  given 
Ocality  in  their  hunting  voyages,  unless  an  area  con- 
faiiiing  fifteen  or  twenty  thousand  square  miles  can 
Ia'  considered  a  definite  "sealing  ground."  A  refer- 
•nec  to  the  evidence  given  shows   that  seals  were 

«<  >.'  every  year,  from  1886  to  1890  inclusive,  north, 
■  '':'■,  cast,  and  ivest  of  the  Pribilof  Islands,  at  dis- 
;;^  I  s  ranging  from  (50  to  over  200  miles  therefrom. 
i  '(•  Mtteiition  of  the  Commissioners  is  particularly 
cMliiii  to  the  Townsend  chart  for  1894,  and  tlie  "seal- 
iuji"  cliart.  No.  4,  of  tlu  case  of  the  United  States 
at  I'firis,  both  of  which  were  jdaced  in  evidence  by 
'ircjit  Britain.  Tlie  testimony  and  the  charts  demon- 
strate that  tlie  area  where  seals  are  hunted  in  Bering 
Sea  extends  from  165°  to  175°  west  longitude,  and 
tVnm  58°  to  59°  north  latitude,  contahiing  from  140,000 
to  150,000  square  miles,  equal  in  area  approximate! if  to 
'i'c  ''orth  Sea. 

The  Argument  on  behalf  of  Great  liritain  sums  up  H""-.  Aig.,  65, 
tlic  evidence  relied  U})on  in  the  following  words: 

Having  established  that  the  sealing  grounds  in  Bering 
Sea  are  well  known  and  easily  defined,  it  is  proposed  to  point 
liow  plentiful  the  seals  were  in  those  sealing  grounds. 


224 


NO    DEFINED    "SEALING    GROUNDS"    IN    BERING    SEA. 


Br.  Ars.,  65,  f^) 
line  32. 


tt  18  as  fittinji:  to  term  the  entire  expanse  of  tlie 

North  Sea  a  "fishing-  gTound"  as  it  is  to  term  these 

waters  "seaHng-  grounds;"  and  it  is  a  significant  fact 

'    *  Great  Britain  fails  to  define  the  assumed  locality 

'     eal  abundance. 

riie  second  portion  of  this  part  of  the  Argument 
under  consideration  deals  with  the  abundance  of  seals 
in  this  area  of  140,000  to  ir)0,000  square  miles. 

During  the  morning  session  of  the  High  Commis- 
sion on  December  2,  1890,  there  was  read  into  the 
record  on  behalf  of  Great  Britain  a  de})osition  of  J.  H. 
Douglass,  the  revenue-maiiue  pilot,  already  referred 
In  that  ap})ears  the  statement  which  is  quote'l 
in  the  Ih-itish  Argument  showing  that  the  seals  "are 
at  all  times  very  plenty  between  Unimak  Pass  ami 
said  Islands,  in  a  track  al)out  thirty  miles  wide,  which 
seems  to  be  their  highway  to  and  from  the  Islands." 

The  picture  of  a  "stream  of  seals"  30  miles  wide, 
extending  through  [Jnimak  Pass,  and  tlience  for  180 
miles  to  the  Pribilof  Islands,  suggests  many  possi- 
l)ilities  and  certainties  attendant  iqxni  the  occupation 
of  seal  hunting.  If  such  a  condition  existed  in  reality 
in  1886,  or  at  any  time,  it  can  not  be  understood  why 
it  was  necessary  for  the  sealing-  vessels  to  ever  enter 
the  disputed  waters  of  liering  Sea.  Lying-to,  at  the 
entrance  of  the  Pass,  their  boats,  with  short  inter- 
vals between  them,  extending  like  a  chain  from  shore 
to  shore,  it  seems  as  if  the  avarice  of  tlie  sealer  and 
his  exaggerated  ideas  of  profit  might  have  been  fully 
realized  in  the  slaughter  of  the  migrating  animals, 
'^riie  fact  is  that  this  has  never  occurred  in  the  history 
of  pelagic  sealing,  and  that  no  vessel  has  ever  hunted 
in  Unimak  Pass. 

That  this  deposition  is  suitable,  authentio  evidence, 
such  as  should  receive  consideration  by  this  High 
Commission,  is  denied  by  the  United  States. 

Two  weeks  after  this  deposition  was  ofi*ered  in  evi- 


NO    DEFINED    "SEALING   GROUNDS"    IN   BERING   SEA. 


225 


(leiico,  in  the  redirect  exainiuation  of  the  witness  Clar- 
ence N.  Cox,  the  following  questions  were  asked: 


R.,  613,  line 


Q.  Do  seals  herd  together,  as  Mr.  Warren  suggests? 

A.  I  have  never  seen  theui  that  way. 

Q.  As  a  matterof  fact,  are  the  seals  you  get  scattered  about 
here  and  there? 

A.  Yes,  sir. 

Q.  Coming  back  to  the  point  about  the  seals  being  all  in  r.,  613,  line 
a  herd  together,  is  that  the  case  at  all  in  the  months  of  July,    12. 
August,  and  September? 

A.  Never  in  that  way. 

Q.  How  do  you  And  the  seals  then  ? 

A.  Scattered  about. 

Q.  (Jii  certain  grounds? 

A.  1  seldom  find  them  on  the  same  grounds. 

Q.  How  many  will  you  And  together  as  a  rule? 

A.  Three  or  four;  two;  very  often  one. 

i).  And  this  idea  of  large  herds,  with  watchmen  to  keep 
the  pt'lagic  sealer  oil',  is  there  anything  of  that  kind  in 
Heriug  8ea? 

A.  Not  in  my  experience. 

Q.  Do  you  find  them  in  larger  bodies  on  the  southern 
coast  ? 

A.  Yes,  sir. 

(}.  When  they  are  coming  up  to  the  sea? 

A.  On  the  southern  coast  we  find  them  in  larger  bodies. 

Q.  And  the  remark  you  have  made  when  asked  about 
tweuty-flve  seals  together,  and  that  sort  of  thing,  does  that 
apply  to  Bering  Sea? 

A.  No,  sir. 

Q.  Did  you  ever  meet  a  mass  containing  as  many  as  twenty- 
five  seals  close  together  in  Bering  Seal 

A.  No,  sir. 

Q.  You  meet  them  in  scattered  numbers? 

A.  Yes,  sir. 

The  position  here  assumed  by  Gre.'it  Britain  is  dia- 
metrically opposed  to  that  taken  when  the  Douglass 
deposition  was  urged  upon  the  Commissioners.  From 
the  time  of  the  examination  of  Cox,  up  to  and  in- 
cluding the  last  day  of  the  session,  on  February  2, 
110  more  evidence  was  offered  on  the  part  of  Great 
Hritiiiu  to  establish  this  "stream  of  seal«>,"  and  no  other 
lefereiice  is  made  to  it  until  it  aj)pear8  again  at  this  time 


B  s- 


-15 


226 


NO   DEFINED    "SEALING   GROUNDS'     IN   BERING   SEA. 


NO    1 


in  the  Argument.  But  few  references  to  the  Record 
need  be  made  to  show  there  is  no  evidence  to  sustain 
the  })Osition  assumed  anew  by  Great  Britain,  as  the 

Br.  Arg.,  66.  citations  whicli  are  relied  on  in  the  Argument  in  no 
particuhu'  sustain  the  opinion  of  the  witness  Douglass 
or  hel]»  to  establish  the  contention  that  there  is  any 
well-defined  locality  where  seals  are  found  in  such 
abundance  as  to  insure  a  certainty  of  profitable 
hunting. 

B'.  310,  line  ^''jjg  witness,  Alexander  Reppen,  called  on  behalf 
of  Great  Britain,  states  that  the  seals  are  no  thicker 
in  one  quarter  than  in  another ;  that  it  just  happens 
that  a  schooner  runs  across  a  number  of  seals  and 
stays  there  for  awhile,  and  that  she  then  goes  60  or 
70  miles  in ,  another  direction,  where,  lying-to,  she 
ocnds  out  her  canoes  and  stays  there  a  day,  and,  if 
the  seals  are  thick,  two  days,  and  sometimes  more; 
and  then,  })icking  up  the  canoes,  the  vessel  moves  off 
60  or  100  miles  in  another  direction,  covering  the 
whole  sefi  about  the  islands. 

The  witness,  Charles  E.  Rayiior,  testified  as  follows: 

R.,  535,  line  q  jjj  looking  for  seals  out  there,  you  have  to  take  your 
vessel  arounrl  the  various  parts  of  the  sea  to  come  across  a 
bunch  of  seals? 

A.  Yes. 

Q.  You  do  not  hunt  seals  in  herds,  do  you — they  are  found 
in  small  bunches,  are  they  not? 

A.  Mostly,  I  find  them  by  two  or  three  at  a  time. 

Q.  There  is  no  such  thing  as  running  across  thousands  of 
seals  and  being  able  to  kill  any  number  of  them  in  a  short 
time? 

A.  No,  sir;  I  never  found  it  so. 

The  witness  Clarence  N.  Cox,  already  referred  to, 
gave  the  following  testimony: 

^■45.^'  ^^°^  Q-  You  don't  want  to  be  understood  as  testifying  that 
boats  go  out  into  a  large  herd  of  seals  and  catch  them  right 
and  left? 

A.  So,  sir. 

Q.  They  take  them  up  separately? 


A.  Yes,  on 
Q.  The  ca 

Which  do  yo 
A.  I  have 
Q.  They  ci 

seal  sleeping 

I  doing',  they  i 

A.  Ves,  sii 

Q.  Then  tl 

A.  Yes,  si] 

Further 
lueiits  on  tl 
Hiji'li  Comi 
deny  that  tl 
territorial  \ 
the  Pribilo 
all  times  ab 
basis  tor  ca 
thiit  within 
square  mik 
suiuiner  im 
iiig'  their  fo 
time  contei 
seals  are  st 
Pril)ilof  Is] 
may  Ije  su 
catch. 


mmm^ 


NO    DEFINED    "SEALING   GROUNDS"    IN    BERING    SEA. 


227 


A.  Yes,  one  and  two  together — three. 

Q.  The  canoes  or  boats,  whichever  you  may  be  using. 
Wiiicli  do  you  use  ? 

A.  I  have  had  canoes  since  1892. 

Q.  rhey  circulate  about  the  boat,  and  when  they  find  a 
seal  sleeping,  traveling,  or  breaching,  whatever  he  may  be 
doing',  they  kill  hhu1 

A.  Yes,  sir. 

Q.  Then  they  go  searching  for  another? 

A.  Y('S,  sir. 

Further  reference,  in  view  of  the  foregoing  state- 
iiK'iits  on  the  part  of  the  witnesses  swoni  before  the 
lYv^h  Comniission  seems  useless.  The  United  States 
deny  that  there  exists  in  Bering  Sea,  except  within  the 
territorial  waters  of  the  United  States  surrounding 
the  Pribilof  Islands,  any  locality,  where  seals  are  at 
all  times  abundant,  of  such  limited  extent  as  to  form  a 
basis  tor  calculating  a  proljable  catch.  They  admit 
that  within  an  area,  including  from  140,000  to  150,000 
si|Uiire  miles  of  o[)en  sea,  seals  are  found  during  the 
suiuiner  months  and  that  they  are  killed  while  seek- 
ing- their  food  over  this  expanse  of  waters,  at  the  same 
time  contending  that  this  large  area  over  which  the 
seals  are  scattered,  itorth,  east,  south,  and  ivest  from  the 
Piihilof  Islands,  forms  no  basis  for  any  formula  which 
nui}-  Ije  suggested  for  the  computation  of  a  possible 
eatcli. 


DURATION  OF  THE  SEALINO  SEASON  IN  BERING  SBA 

The  case  of  the  United  States  in  answer  to  the 
claim  for  damages,  measured  b}''  the  uncertain  and 
estimated  results  of  a  prospective  catch,  is  confidently 
rested  on  the  citation  of  authorities  universally  hold- 
ing that  this  basis  for  determining'  and  awarding 
damages  is  too  uncertain  and  speculative  to  be 
accepted;  and  upon  the  testimony  in  the  Record 
bearing  upon  the  obstacles  offered  by  nature  and  the 
unsurmountable  difficulties  encountered  in  the  busi- 
ness of  seal  hunting,  which  render  the  ascertainment 
of  a  just  basis  for  calculating  future  earnings  of  seal 
hunters  absolutely  impossible. 

The  claim  advanced  as  to  the  duration  of  the  seal- 
ing season  in  Bering  Sea,  in  the  Argument  on  behalf 
of  Great  Britain,  however,  bears  upon  the  time  that 
the  owners  of  the  vessels,  Avarned  from  continuing 
their  voyages  and  not  seized  and  condenmed,  were 
deprived  of  the  use  of  their  ships.  The  extracts  and 
citations  of  testimony  from  the  Record  and  the  con- 
clusions drawn  therefrom  in  the  British  Argument, 
relative  to  the  sealing  season,  are  violently  at  war, 
the  one  with  the  oilier.  The  voyages  of  many  of 
the  vessels  are  shown  in  the  extracts  from  the  evi- 
dence, carefully  collected,  to  have  terminated  between 
the  20th  and  25th  day  of  August,  but  the  conclu- 
sion is  drawn  that  the  season  extended  "well  into 
September." 

Again,  at  page  69  of  the  Argument,  line  20,  a  state- 
ment is  made  of  the  latest  voyages  that  the  records 
show  ever  were  made  in  Bering  Sea,  and  made,  it  is 
worthy  of  note,  during  the  year  1890,  a  year  not 


228 


DURATION   OF    THE    SEALING   SEASON    IN    BERING    SEA. 


229 


averajj^e 


(liivctly  involved  in  this  controversy.  Tlie 
(lute  for  the  termination  of  the  voyages  of  the  vessels 
iiained  in  this  statement,  which  excludes  nine  vessels 
(lilt  of  sixteen  which  were  in  the  sea  that  year,  is 
September  5.  The  days  that  hunting'  operations 
were  stopped  is  not  given,  only  the  days  upon 
wliicli  the  various  vessels  left  the  sea.  The  conclu- 
sion, however,  is  drawn:  "It  is  therefore  established 
that  the  habits  of  the  seals  and  the  weather  ordinarily 
prevailing  would  permit  the  vessels  engaged  in  seal- 
ing to  carry  on  operations  until  well  into  the  month 
of  September,  if  it  was  necessary,  in  order  to  complete 
their  catch." 

Without  citing  from  the  Record  the  testimony  of 
[\\\x  witness  showing  that  a  longer  voyage  was  ever 
made,  and  in  fact  no  such  testimony  could  be  refeiTcd 
to,  the  final  conclusion  is  drawn  that  it  has  been 
"determined  that  they  would  in  each  case  have  con- 
tinued sealing  under  the  favorable  conditions  of  British  Arg., 
weatlier  proved  to  have  been  existing  until  as  near 
die  end  of  September  as  wf)uld  have  been  necessary 
to  accomplish  a  satisfactoiy  catch." 

The  supposition  Tnight  fairly  be  made  that  the 
tennination  of  the  sealing  season,  without  any  foun- 
dation in  evidence  being  fixed  "as  near  the  end  of 
.September,"  would  not  be  again  removed  to  a  later 
time.  Ill  the  statements  appended  to  the  Triumph^ 
Argument,  148;  Ariel,  Argument,  151;  Kate,  Argu- 
ment, 153,  these  elastic  phrases,  "until  well  into  the 
month  of  September"  and  "until  as  near  the  end  of 
September  as  would  have  been  necessary,"  are 
exj)iuidedto  October  1. 

riie  United  States  contend  that  the  testimony  in 
die  Record  definitely  fixes  August  20  to  August  25  as 
the  latest  time  seal  hunting  could  be  carried  on  with 
profit  in  1886,  1887,  1888,  and  1889. 

No  evidence  was  adduced  on  behalf  of  the  claim- 
ants bearing  upon  the  duration  of  the  season,  except 


230       DURATION   OF   THE    SEALING   SEASON    IN   BERING    SEA. 


BVRA 


in  tlie  indirect  way  of  examining  witnesses  as  to  the 
time  tor  which  a  vessel  was  OHt/itfed. 

Tlie  answer  to  a  ({nestion  of  that  natnre  furnishes 
no  definite  information  as  to  the  last  day  that  huntinif 
was  carried  on,  and  includes  the  time  required  to 
make  the  voyage  out  of  the  sea  and  thence  down  the 
coast  to  Victoria. 

All  the  testimony  in  the  Record  relating  to  the 
dvration  of  the  hunting-  season  in  Bering  Sea  given 
•  by  captains,  mates,  or  Inniters  on  vessels  whose  voyages 
were  not  interrupted  or  interfered  tvith,  is  contained  or 
referred  to  in  this  portion  of  the  Argument. 
R., 230, lines.  The  hunting  of  seals  in  Bering  Sea  began  in  the 
year  1886.  Captain  Warren  testified,  "  1 88H  was  the 
first  year  then  of  any  note  in  Bering  Sea."  The  evi- 
dence does  not  refer  to  more  than  a  half  dozen  vessels 
which  entered  Bering  Sea  prior  to  that  year,  and  none 
of  them  sailed  from  Victoria. 

Arg.  on  be-  The  Argument  on  behalf  of  Great  Britain,  concern- 
B.,  p.  79^  iug  "Method  for  computing  the  estimated  catch," 
line  16.      contains  the  statement: 


R.,  252. 


Exh.    27, 
B.,    CI. 
Exhs., 
43. 


E.,  266,  line 


It  is  contended  by  Great  Britain  that  in  1886  the  Mary 
Mien  is  the  only  vessel  of  which  it  can  be  stated  with  cer- 
tainty that  she  couii)leted  her  voyage  without  interference 
of  any  kind. 

G.      William  T.  Bragg,  called  on  behalf  of  Great  Brit- 
p'ain,  was  examined  relative  to  the  voyage  of  the  Marji 
Ellen  in  188(5.     He  gave  a  detailed  statement  of  the 
catch.     The  last  hunting  day  was  August  24. 
On  cross-examination,  he  said: 

Q.  The  2ith  of  August  was  practically  the  close  of  the 
sealing  that  year  in  Bering  Sea,  was  iti 
A.  It  was  the  close  of  our  sealing. 

Q.  Did  you  come  away  earlier  that  year  than  others,  or 
did  you  stay  the  ordinary  limit  of  the  sealing  season? 
A.  That  was  the  ordinary  limit  at  that  time. 
Q.  And  in  1887  it  was  about  the  limit? 
A.  About  the  limit  in  1887. 


Q.  Why  ( 
Auji'ii«t»  188 

A.  Well, 
commences  1 
latter  part  o 
wester  abou 

(,>.  And  w 
September  t 

A.  I  neve 

q.  And  y 
that  late  in 

A.  No,  I  ( 

().  I  belie 
long  as  you 
of  any  seizu 

A.  Not  tl 

Andrew 
Britain  am 
mission,  te 
Saiiimrd,  1 
day  that  t 
hunting  sc 

Eiuile  I 
relative  to 
1886,  said 

(I  Andl 
A.  If  I  r€ 
<,).  Why  I 
A.  I  don' 

On  cros 

(,).  When 
A.  What 
(,).  In  18i 
A.  Well, 

pnibably  a 
Q.  Then 
A.  The  ^ 

wasn't  verj 

Alexain 
Britain,  t( 

Q.  Did  5 
A.  Abou 


ma 


DURATION   OF   THE   SEALING   SEASON   IN    BERING    SEA.        231 

{).  Why  (lid  the  season  close*  on  or  about  the  24th  of 
AufiiKst,  1886  aud  1887? 

A.  Well,  coining  on  the  Ist  of  September  the  weather 
commences  to  get  bad.  The  northwesters  set  in  about  the 
latter  part  of  August,  and,  as  a  rule,  they  take  the  first  north- 
wester about  the  last  of  August  and  steer  for  home. 

().  And  when  they  talk  about  the  season  extending  into 
September  they  do  not  speak  of  the  years  1886  and  1887  ? 

A.  I  never  remained  in  there  that  late. 

Q.  And  you  never  knew  anyone  else  to  remain  in  there 
that  late  in  those  years? 

A.  No,  I  did  not. 

().  I  believe  you  said  that  you  stayed  in  Bering  Sea  as  R-,  267,  line 
long  as  you  desired,  and  that  you  did  not  come  out  because    ^*- 
of  any  seizures  in  1886? 

A.  Not  that  I  was  aware  of. 

Andrew  D.  Laiiig,  examined  on  belialf  of  Great  Rv  270. 
Britain  and  himself  a  claimant  before  this  High  Com- 
mission, testified  relative  to  the  voyage  of  the  W.  P. 
Sdi/iimnl,  1886,  and  said  that  August  24  was  the  last Rv27i, lines. 
day  tliat  the  boats  were  lowenid  for  the  purpose  of 
hunting  seals. 

P^inile  Randase,  called  on  behalf  of  Great  Britain, 
relative  to  the  catch  of  the  Theresa  in  Bering  Sea  in 


R..  299,  line 
17. 


K.,  300,  line 
47. 


18Hf;,  said: 

il.  And  how  long  did  you  remain  in  the  sea  sealing? 
A.  If  I  remember  right,  we  left  on  the  35th  of  Atigust. 
().  Why  did  you  leave  on  the  25th  of  August? 
A.  1  don't  know.    I  suppose  that  was  the  end  of  the  trip. 

On  cross-examination,  witness  said: 

Q.  When  did  you  stop  sealing  in  August? 

A.  What  year? 

(,).  Ill  1886? 

A.  Well,  as  near  as  I  can  remember,  a  few  days  before  that, 
probably  a  couple  of  days. 

Q.  Then  you  left  on  account  of  what? 

A.  The  vessel  wasn't  fitted  out  for  a  long  cruise;  she 
wasn't  very  well  provisioned  going  home? 

Alexander   Re])pen,    called   on   behalf    of    Great  R.,  306,  line 
Britain,  testified  that  he  was  on  the  Grace  in  1886: 

().  Did  your  sealing  end  about  the  10th  of  August  f 
A.  About  that  I  think.    . 


232       DURATION   OF   THE    SEALING    SEASON    IN    KEKINO    SEA. 


DUR/ 


K    311   line     Q-  You  weut  out  of  the  (sea  Oil  the  i5//t  o/>lMfjfH«^/ 
'52!    '  A.  Yes. 

Q.  You  stated  that  you  were  there  several  days  waiting 
itor  good  weather,  did  you  not? 

A.  Yes. 

Q.  And  the  good  weather  did  not  comef 

A.  No. 

Q.  So  you  went  out  of  the  sea  ? 

A.  Yes. 

Q.  Was  the  bad  weather  that  season  the  reason  why  you 
left  the  sea? 

A.  Yes. 

Ke])j>eii  was  the  only  witness  calletl  wlio  was 
aboard  the  Grace  in  188fi,  and  liis  m  \ce  oiil- 
wei<'lis    the  j>eiieral    statement  of  Cap^  Varreu 

that  his  vessels  were  outfitted  lor  a  v(>va«»e  until  the 
end  of  Repteiuber. 
R.,^377,  line  j„i,ij  Qotsford,  called  on  behalf  of  the  United 
States,  relative  to  the  voyage  of  the  Carohna  in  1880, 
said: 

Q.  Do  you  know  anything  about  what  the  time  Cai)taiii 

Oglevie,  or  did  you  hear  anything  about  the  time  he  was 

.  preparing  to  leave  the  sea? 

A.  Somewhere  about  tlie  20th  or  23rt(  of  August,!  believe. 
(Captain  Oglevie  had  told  him.) 

British 


itishAgr.,      Jjimes  Muiiger,  called  on  behalf  of  Great  liritaiu, 
to.    '     "^relative  to  the  voyajj^e  o^"  the  Carolena  in   188(1,  is 
cited  in  the  British  argument  as  saying': 


p 

40, 


E.,  636,  line 


E.,  1728,  line 
16. 


In  the  sea  the  captain  talked  of  going  home  about  the  end 
of  the  month  (of  August). 

Cross-examined,  this  witness  saio : 

Q.  Will  you  swear  whether  they  saiJ  "about  the  end  0* 
the  month"  or  "the  20th  of  August?" 
A.  No. 

Q.  You  could  not  say  which? 
A.  No;  not  as  to  date. 

Peter  C.  Meyer,  called  on  behalf  of  the  Unite^i 
States,  testifying  relative  to  the  voyage  of  the  Van- 
derhUt  hi  the  years  188(5,  1887,  and^l888,  said: 

Q.  How  did  you  find  the  sealing  between  August  20th  and 
the  end  of  August? 


A.  I'rom  1 

(I,  Yes. 

A.  Well, 
pay  in  stayi 

(}.  What 

A.  1  was 
gave  it  a  tri 

(,».  In  yov 
good  sealing 

A.  No,  si 

The  wit 

2()tli  and  i 

posit  ion  to 

Capt.W 

a  witness  c 

Q.  How  1 

did  you  exp 

A.  I  inte 

^rhe  wit 
li;  conseq 
vear  in  th 

('a})tain 
v(»yiige  of 

Q.  For  hi 
you  expect 

A.  I  exp 
September. 

i}.  As  a 

A.  I  left 

The  wi 
to  testify 
latter  ])ar' 

Fixhibit 
discloses  1 
the  •_>4tli 
the  29th, 
mnking  r 
sa"'!'  of 
Sen.  l)e 
even  the 


DURATION   OF    THE    SEALING    SEASON    IN    BERING   SEA. 


233 


A.  l-'i'oni  the  20th  of  August  to  the  end  of  the  month  ? 

(^  Yes. 

A,  Well,  1  didn't  find  much  in  it.  There  was  not  much 
pay  ill  staying  that  time. 

(,).  What  did  you  stay  for? 

A.  1  was  there  to  give  it  a  trial,  and  1  stayed  there  and 
gave  it  a  trial,  but  I  found  it  didn't  pay  me. 

<,►.  In  your  experience  in  1886  and  1887,  you  did  not  And 
good  sealing  between  the  20th  and  Slst  of  Avy  .ist  t 

A.  Xo,  sir;  it  was  not  good  sealing  weather. 

Tlie  witiieHs  liad  been  in  ]k'rinj>-  Sea  between  the  ^•jT^'^^^'  ^^* 
20tli  }iu(l  Slst  of  August  in  1886;  tlierefov    was  in  a 
position  to  testify  concernino-  tlie  actual  conditions. 

Capt.  Wni.  O'Leary,  master  of  tlie  Pathfinder  in  1886,  t^"^>  ""e 
a  witness  called  on  behalf  of  the  claimants,  testified: 

Q.  How  long  were  you  provisioned  to  stay  and  how  long 
did  you  expect  to  stay  in  the  sea  when  you  went  there? 
A.  I  intended  to  stay  until  about  the  first  of  September. 

The  witness  then  testified  that  he  did  leave  Auj^ust 
(!;  consequently  he  had  no  actual  experience  that 
yoai-  in  the  sea  after  the  6th  of  August. 

Captain   O'Leary  was    examined   relative   to   the^'^^^^^'  ^'°" 
voyage  of  the  Pathfinder  in  1887: 

(i.  For  how  long  were  you  provisioned  and  what  time  did 
}'ou  expeirt  to  stay  there? 

A.  I  expected  to  stay  until  September — about  the  Ist  of 
September. 

(i>.  As  a  matter  of  fact,  how  long  did  you  scay  in  the  seat 

A.  1  left  on  the  17th  of  Anyust. 

Tiie  witness,  therefore,  was  again  not  in  a  position 
to  testify  as  to  the  actual  conditions  existing  in  the 
latter  i)art  of  Augast. 

Kxhibit  27,  <^.  B.  Clahn  No.  1,  Exhibits,  page  43, 
discloses  that,  although  the  Mart/  Ellen  ceased  hunting 
tile  24th  of  August,  she  did  not  leave  the  sea  until 
the  29th,  the  intervening  time  being  employed  in 
iiiaklng  ready  for  her  return  voyage  and  in  the  pas- 
f*age  of  the  Pass,  through  which  she  left  Bering 
Sea.  Deducting  five  days  from  September  1,  and 
even  the  test  -  ony  of  Captain  O'Leary  regarding 


234        DURATION    OF    THE    SEALING    SEASON    IN    BERING    SEA. 


DURj 


what  he  nitemled  fixes  the  close  ot"  the  liunting  season 

770  r    '^^  "^  nuHst  :3'}. 

'I3.    '  This  witness  was  ex.arniiied  relative  to  a  voyage  in 

Walter  L.  Rich 'ml^m-. 

il.  How  late  in  August  did  you  leave  ? 
A.  About  the  25tli  of  August,  as  far  as  i  remember. 
Q.  You  uever  were  in  thure  later  thau  the  :i5th  o/Aiigustl 
A.  I  do  not  think  so;  that  was  the  last  year  I  was  in  the 
Bering  Sea. 

This  witness,  who  was  one  of  the  captains  employed 
by  the  claimant,  William  Munsie,  between  the  years 
188<>  and  1890,  was  never  in  Bering  Sea  later  than  the 
'iotli  of  Augnst.  redacting  the  usual  time  required 
to  make  the  voyag-e  from  the  place  where  the  vessel 
chanced  to  be  sealing  to  the  Pass  through  which  she 
would  leave  the  sea  and  hunting"  operations  would 
cease,  according  to  his  testimony,  about  the  20th  of 
August. 

Captain  James  D.  Warren,  who  managed  ilk' 
,.  •  largest  fleet  of  vessels  hi  Bering  Sea  in  1886,  ex- 
amined on  behalf  of  the  claimant,  Is  cited  in  the 
British  Argument,  page  70,  in  su])}>ort  of  the  conten- 
tion that  the  sealiim"  season  in  ihe  vearl886  extended 
to  the  end  of  ►  September: 

K-^^908,  line  Q,  ix\  188G,  taking  the  supplies  you  had  on  the  vessels  you 
have  mentioned,  how  h)ng  did  you  arrauge  for  tlie  cruise,  a 
cruise  of  the  various  vessels  in  youi  lieetf 

A.  My  intention  was  to  have  stayed  in  the  sea  until  about 
the  end  of  Septc.  uber. 

This  witness  might  reasonably  be  expected,  when 
the  general  character  of  these  claims  is  considered,  tc 
testify  to  a  prolonged  hunting  season,  but  irrespective 
of  his  prejudir'es,  the  fact  is  disclosed  by  the  record 
that  he  was  never  in  Bering  S^a  after  the  20th  of 
August,  and  that  the  captains  sailing  thr  schooners 
of  the  fleet  in  the  year  188<)  all  sto[)ped  huntin;;- 
before  the  2.')th  of  August. 

Laing,  mate  ox  the  Sai/wanh  managed  by  Wan'eu, 
states  the  last  sealing  day  was  Autfust  24. 


66. 


Alexand 
her  sealinj 
she  was  i 
weather. 

Cai)tain 
to  the  fleei 

Q.  So  thi 
fitted  until 
A.  I  am 
when  I  left 
(,),  And  ^ 
A.  Well. 
Sea.    Thes 
boitnl  to  ke 
Q.  How  ] 
xV,  As  loi 
(,).  Did  y 

1K8(>? 

A.  1  did. 
Q.  And  3 
A.  Yes, 
{}.  How 
A.  Until 
and  came  tl 

The  cai 

[lusitively 
as  his  Tefti 
tlieirs  upo 
l)e  given  1 
The  wil 
testified : 

»,>.  Xow, 

the  sua  at  1 
A.  in  th 
(,).  Did  3 

iiij;-  Sea  to 
A.  Ill  th 

tlicrt!  was 
(,>.  Vou 
A.  The 
<,►.  Can 

Bering  Sei 
A.  1  doi 


DURATION   OF    THE    SEALING    SEASON    IN    BERING    SEA.        235 

Alexander  Reppeii  testified  that  the  Grace  ceased  ^•-^n,  line 
her  seahug  voyage  on  the  lotli  of  Aiofusf,  and  tliat 
she  was  not  warned   but   stop})ed  because  of   bad 
weatlier. 

Ci4)tain  Olsen,  saiHng  the  Anna  Beck,  belonging  ^-gg^*^^^'  ^^^ 
to  the  fleet  managed  by  Warren  in  1886,  testified: 

Q.  So  that  you  would  not  be  positive  that  you  were  out- 
fitted until  the  Ist  September? 

A.  I  am  positive  that  I  was  outfitted  until  Ist  September 
when  I  left  the  west  coast. 

(.).  And  you  made  arrangements  to  hunt  until  what  time  ?  ^"'j, ^*'**^'  ^*°* 

A.  Well,  as  loii^  as  1  thouglit  flu  to  stay  in  the  Bering 
Sea.  These  were  my  orders.  I  had  enough  supplies  on 
board  to  keep  me  there  until  the  beginning  of  September. 

(^  How  long  were  you  instructed  to  stay  there? 

A.  As  long  as  1  thought  reasonable  to  get  skins. 

(}.  Did  you  tit  out  this  same  vessel  the  year  before,  viz, 
ISSO? 

A.  Idid. 

Q.  And  yon  fitted  l^er  out  in  the  same  way  ? 

A.  Yes,  sir.  ' 

(^  How  long  did  you  remain  in  the  sea  in  188G? 

A.  Until  the  19:it  Amftint,  and  then  I  started  for  the  pass 
aiul  came  throui^b  on  the  31st. 

The  cajitiiins  on  thi'ee  of  the  vessels  of  this  fleet 
pusitivt-ly  contradi''t  Captain  Warren,  and  inasmuch 
iis  his  Testimony  wna  l)ased  upon  a  supposition  and 
theirs  upon  actual  experience,  but  little  w  io'ht  is  to 
he  li'iven  to  his  statement. 

The  \vittM?«8  himself,  however,  on  cross-examination,  K--  '^s^,  lino 
testified: 

',).  Now,  you  say  your  schooners  were  all  fitted  out  to  leave 
the  sea  at  the  end  of  September? 

A.  [ii  that  neighborliood. 

().  Did  you  ever  know  a  sealing  vessel  that  stayed  in  Bev- 
iiifi'  Sea  to  the  end  of  September  in  those  years? 

A.  In  them  years  I  don't  think  I  do,  and  I  think  likely 
there  was  vessels  in  before 

<»>.  Voii  did  noi  i)egin  to  enter  Bering  Sea  until  188<i  ? 

A.  The  Victonaus  did  not,  as  a  rule. 

<^  Can  you  tell  me  of  a  single  vessel  that  remained  in 
Bering  Sea  in  i8tH)  or  1887  as  late  as  September .' 

•v.  I  don't  know  as  1  know  of  one. 


23<)        DURATION   OF    THE   SEALING    SEASON   IN   BERING   SEA. 


Q.  You  were  first  in  Bering  Sea  in  1886? 

A.  In  1886. 

Q.  What  was  the  usual  time  for  leaving  Bering  Sea  of  the 
whole  of  tiie  sealing  fleet? 

A.  We  were  coTnmenoiu<i'  at  that  time ;  I  intended  to  have 
stopped  iu  until  the  end  of  September. 

Q.  Have  you  learned  since  by  experience  that  there  is  no 
sealing  to  bo  had  after  the  S5th  of  August? 

A.  Yes,  sir. 

■^57*^^'  ^^"*  Captain  Alexander  McLean,  sailing-  the  Favourite, 
closed  his  hunting'  season  in  1883  on  the  10th  of 
AiiijKst;  in  188.5  on  the  38d  of  August,  and  in  188(5 
on  the  19 fh  of  August.  He  produced  the  original  lo|i; 
books  of  his  voyage  for  those  years,  and  the  entries 
confirmed  his  testimony.  The  logs  are  on  file  as 
exhibits  and  can  be  inspected. 

This  testimony  is  all  the  testimony  in  the  record 

*■'  ^ 

bearing  upon  the  duration  of  the  sealing  season  in 
Bering  Sea  in  the  year  18S6,  which  was  given  by 
captains  who  were  actually  there  and  whose  voyages 
were  not  interrui)ted.  Only  one  of  these  vessels  was 
warned,  and  Captain  ^Icljean,  connnanding  that  ves- 
sel, the  Favourite,  testified  that  he  did  not  leave  the 
sea  because  of  the  warning,  l)ut  stop})ed  hunting  on 
the  19th  of  Auu'ust  because  the  season  wns  closed. 


TESTIMONY    KELATING    TO   DURATION  OF   SEASON   OF   1887, 

E.^^403,  line      Captain    Alexander    McLean,    sailing    the    Mmy 

FUrrt  stop})ed  hunting  on  the  1.0th  dan  o.f  Auf/usf. 
^6i!^*"'""^      Captain  Charles  E.  Kaynor  states  tliat  he  made 

ready  to  leave  the  sea  on  the  :^4th  of  August,  1887,  on 

the  AJUe  I.  Alger. 

Captain  Laughlin  McLean,  a  witness  on  behalf  of 

Great  liritain,  testified: 

il.  When  did  you  leave  Bering  Sea? 

A.  I  will  have  to  refpir  to  my  books  [examining  meuio- 
randumj.  In  1S87  my  'ast  sealing  day  was  the  27th  of 
yl  «</««/,  and  I  came  out  through  the  pass  on  the  5tli  of 
Sejkember. 


TlIK    TEST 


R.,  730,   line 
55. 


DURATION    OF    THE    SEALING    SEASON    IN    BERING    8EA.         237 


1727,  line 
6. 


The  detailed  statement  of  the  catcli  of  tlie  Favourite  ^\'  '32,  line 
in  18.S7  bIiows  that  the  2f)tli  of  Aug-iist  Avas  the  hist 
siahiig-  day,  the  witness  statino-,  "  and  the  :20th  is  tlie 
l;isr  (lay  of  sealing-." 

Captain  Albert  Folger,  a  witness  called  on  behalf  ^7g^^^^' ^'°® 
lit'  the  United  States,  examined  relative  to  his  voy- 
iiiivs  in  leering  Sea,  testified  that  he  was  a  sealing 
(■;i|iriiin  and  that  he  resided  at  Victoria,  and  that  the 
hist  day  he  sealed  in  IHS?  was  tlie  "■  IfJt/i  of  Aufjust." 

Captain  Peter  C.  Meyer,  a  witness  called  on  behalf  ^^ 
lit'  the  United  States,  testified  that  his  last  lowering 
ihiy  in  1887  was  on  the  ^.'Hh  of  Aiu/Hst;  that  he 
iriiiiiiiit'd  in  the  sea  until  thf  11th  of  September,  and  was 
lUKihlc  to  lower  Iris  boats  in  the  meantime. 

Alexander  Reppen  testitie<l  that  he  was  on  the  Black^-i  ^^*'  ^^"* 
l)i((iiio)id  in  1887,  and   that  she  left  t^      sea  on  the 
(■jfii  of  August. 

Captain  Moss  testified  that  the  Kate  left  the  sen  in^*-^-'''^^'  i'°« 
1SS7,  "the  latter  ])art  of  Augnst,"  and  later  fix*  d  tiieR.,34i,iiuei. 
diitc  ''somewhere  abont  the  .Wth  or  :24tli  or  :25th. ^^ 

Kxamined  again  as  to  the  date,  he  testified  ^^  :20th  of^-.  ^'^"^^  ^'"* 
Aiitjust  or  a  little  later.     I  do  not  remember  as  to  a 
I  lav  or  so." 


THE    TESTIMONY     RELATIVE     TO     THE     CLOSE    OF     THE 
SEALING  SEASON  IN  1888. 

JMnile  Ramlase,  examined  on  behalf  of  Gi*eat  Brit-^v  ^'^^t  i*"* 
!iiii  relative  to  the  voyage  of  the  Annie  C.  Moore  in 
Bering  Sea  in  1888,  said: 

i).  What  time  did  you  leave  ? 

A.  About  the  UOth  of  August,  I  believe.    I  am  not  certain  r.,  623,  line 
of  the  date,  though.  50. 

(,!.  Very  near  the  20th  t 

A.  It  must  have  been  very  near  tlie  20th,  because  we  had 
li  III  shed  our  sealing  season. 

().  Were  you  warned  out  in  1888? 

A.  No,  sir. 

Vj.  Crow  Baker,  the  owner  of  the  Triumph  in  1888, 
ami  a  witness  sworn  on  his  own  behalf,  testified  rela- 


238        DURATION   OF   THE    SEALING   SEASON   IN    BERING   SEA. 


K.,  702, 
42. 


R.,  730, 


R.,  1082, 
57. 

K.,  1078, 

20. 
R.,  1078, 

58. 

R.,  1727, 

13. 
R.,  1728, 

26. 

R.,  403, 

59. 
R.,  677, 

8. 


R.,  677, 

42. 
R.,  677. 

38. 


R.,  659, 
62. 


R.,  1447, 
46. 


live  to  the  voyage  of  the  Triumph  in  1888,  and  <jave 

^'"®  a  detailed  statement  of  the  catch  in  Bering  Sea.     The 

last  lowering  day  was  the  ^Oth  of  August.     The  last 

lowering  day  before  that  date  was  the  14th  of  August. 

Captain  Laughlin  McLean,  testifying  relative  to 

the  vo)-age  of  the  Favourite  in  1888  on  behalf  of  the 

^'"^ claimants,  saici  "(i-eferring  to  memorandum):  8tli  of 

July  I  entered  Bering  Sea;  3d  of  September  I  left 

the  sea.     My  last  sealing  day  was  the  J^Tth  of  August!^ 

The  reason  he  left:     "The  weather  was  bad." 

Captain  Albert  Folger,  of  the  Maggie  Mac,  testified 
li«.ethat  his  last  sealing  day  in  1888  in  Bering  Sea  was 

the  !^4th  of  August. 
I*"®     Captain  John  Steele  was  sealing  in  1888.     "The 
Hue  first  strong  gales  that  set  in  from  the  northwest  after 
the  Wth  August  we  generally  left  for  home." 

Captain  Peter  C.  Meyer  testified  that  he  was  master 
Hue  of  the  schooner  VanderhiU  in  1888,  and  that  sealing 

did  not  j)a}'  after  the  :^Oth  of  August. 
'"°      Captain  Alexander  McLean,  sailing  the  Mary  Ellen, 
line  in  1888  stojJiKnl  hunting  on  the  10th  dag  of  August. 
William   J.    Coudie,    called   on   behalf  of  Great 
Ih'itain,  testified  that  the  ^(V^//  of  August  was  the  last 
'^huntino'  dav  (»f  the  Kdwanl  Welch.     Althouo-h  the 
1^°*' vessel  did  not  go  out  until  the  Ttii  of  September,  the 
boats  were  not  lowered  in  the  meantime. 

Captain  Charles  Hackett,  called  on  behalf  of  Great 
line  Britain,  examined  relative  to  the  voyage  of  the  Annie 
C.  Moore  in  1888,  testified  that  he  left  the  sea  the 
^2nd  of  August,  and  that  he  was  not  afraid  of  seizure. 
Captain  Victor  Jacobsen,  a  claimant  before  the 
High  Conunission,  is  cited  in  the  Argument  on  behalf 
of  Great  Britain  on  tlie  duration  of  the  season,  and 
the  statement  is  made  that  he  "also  remained  in  the 
sea  in  1888  until  the  7th  of  September  without 
difficulty." 

He  was  cross-examined  relative  to  the  voyage: 


line 


Q.  I  iiin  ta 

after  tlie  3rd 

A.  We  we 

last,    Wele 

the  sea,  aiu 

sealed  after 

come  out  or 

Q.  Vou  pi 

3rd  (tf  Sept€ 

A.  Out  in 

ami  then  we 

(^  You  lo 

A.  Yes;  1 

This  wit 
on  the  21s\ 
WW,  and  tl 
seals. 

Cii\)tain 
(•f  Great  I 
maiued  hi 

The  wit 
iiiont  of  th 
ISSS,  gav 
2 7 til  of  Ai 
liut  two  se 
of  August 

i).  And, 

8. 1(1,  23,  an 

on  those  da 

A.  No,  si 

Accord: 
tliat  voya 

( 'aptaii 
left  the  s 
exaininati 
Ijecause  1 
after  the 

1  lerma 
iiiu.  said 
the  25th 


mm 


DURATION    OF   THE    SEALING    SEASON    IN    HERING    SEA.       2iJ9 


Q.  I  am  talkiug  about  whether  you  are  certain  you  hunted 
after  the  3rd  of  September. 

A.  We  went  out  through  the  jiass,  but  we  hunted  to  the 
last.  We  left  the  sealing  ground  on  the  3rd  of  September  in 
the  sea,  and  went  and  filled  water,  and  we  lowered  and 
sealed  after  we  filled  water  and  come  out,  the  same  day  we 
come  out  or  the  day  before. 

(^.  Vou  practically  abandoned  your  hunting  then  on  the 
3rd  of  September? 

A.  Out  in  the  sea,  I  suppose.  We  come  and  filled  water 
ami  then  we  hunted  after  that. 

(I.  You  lowered  in  the  pass  ? 

A.  Yes;  lowered  inside  the  Pass. 

This  witness  said  that  he  came  out  in  tlie  year  1890 
oil  tlie  :^lHt  of  AiifjHsf ;  that  lie  was  not  afraid  of  seiz- 
luv,  and  that  he  came  out  because  lie  had  enough  ^'^i^^*^' ^'°® 
seals. 

Captain  Haker  is  cited  in  the  Argument  on  behalf '^'^"  ^^jj^g'^^* 
(tt'(Jn;at  Britain.     The  statement  is  made  that  he  re- 
iiiiiiiied  in  the  sea  until  the  2nd  of  September. 

The  witness  being  asked  to  give  a  detailed  state- 
ment of  the  catch  of  his  vessel  in  the  month  of  August, 
ISSS,  oave  the  statement  which  shows  that  after  tlieH-.  7219  line 
'27tli  of  August  he  did  not  lower  the  boats,  and  took 
hut  two  seals  after  that  (hite,  luie  of  them  on  the  30th 
of  August  and  the  other  on  the  2nd  of  September. 

(}.  And,  for  instance,  I  think  you  stated  that  on  August  l^v  7273,  line 
8.  l(i,  23,  and  30th  and  September  2nd  you  only  took  one  seal 
on  those  days.     Would  those  be  lowering  days'? 

A.  No,  sir. 

Accordingly,  the  close  of  the  hunting  season  for 
that  voyage  wj.s  Auf/ust  27th. 

Captain   Clark,  of  the   J<m/«7rt,  testified   that   he  ^-^^"i^' "°® 
left  the  sea  Auf/ust  ,20,  18^8.     Recalled  for  further 
exaniination,  he  siated  that   the  reason  he  left  was 
because  he  did  not  know  but  there  might  be  seizures 
iit'tcr  the  20th  of  August. 

Herman  Smith,  testifying  on  behalf  of  Great  Brit- ^v^^*^^'  ^^^^ 
aiu,  said  the  Black  Diamond  left  the  sea  in  1888  on 
tilt'  25tli  of  August. 


63. 


240        DURATION    OP   THE    SEALING    SEASON    IN    BERING   SEA. 

The  testimony  of  all  tlie  witue.sses  clearly  estab- 
lishes that  but  one  vessel  had  ever  reiTirdiied  in  Bering 
Sea,  prior  to  the  year  188i),  into  the  month  of  Sep- 
tember. 

In  the  claims  as  i)resented  in  the  Argument  damages 
for  interrupted  voyages  which  would  have  beeu 
extended  until  the  15th  of  September  are  asked. 

The  Moimtain  Chiefs  sailed  by  Captain  Jacobsen, 
was  the  vessel  that  alone  of  all  the  sealing-  fleet  in 
Bering  Sea  in  the  years  188G,  1887,  and  1888  took 
a  seal  in  Sei)tember.  The  testimony  of  Captain 
Jacobsen  has  been  cited  where  he  stated  that  "We 
left  the  sealing  ground  on  the  3rd  of  Septemher  in  the 
sea."  He  does  not  state  what  day  he  lowered  last 
in  the  sea,  leaving  this  to  conjecture. 

Inasnmch  as  the  testimonv  of  the  other  witnesses 
abundantly  establishes  the  fact  that  no  other  vessel 
lowered  its  boats  in  the  month  of  September,  the  pre- 
sumption, amounting  almost  to  a  positive  conclusion, 
is  that  Captain  Jacobsen  did  not  lower  his  boats  from 
the  iHfo^w^rt/w  CVrie/ in  September  in  the  sm.  Agahist 
the  positive  statement  of  the  other  witnesses  as  to  the 
close  of  the  hunting  season,  and  against  the  experi- 
ence of  so  many  other  sealing  captains,  this  one  case 
of  the  continuation  of  hunting  to  the  3rd  of  Septem- 
ber surely  does  not  warrant  the  conclusion  that  the 
15th  of  September  was  the  limit  of  the  season. 


TESTIMONY  RELATING  TO   DURATION  OF    SEASON   OF  "  J9. 

Captain  Charles  Hackett,  a  witness  on  behalf  of 
^'l^'  ^^^^  Great  Britain,  testified  that  he  left  the  sea  in  the  Annie 
C.  Moore  in  1889  on  the  22nd  of  August;  that  it  was 
not  favorable  weather  for  sealing  between  the  16th 
and  22nd,  and  that  he  stopped  hunting  the  16th  of 
August. 

Thomas  H.  Brown,  witness  called  on  behalf  of  Great 
ii.    '  "^^  Britain,  testified  that  the  last  lowering  day  of  the  ves- 
sel ;hat  lie  was  on  in  1889  was  the  25th  of  August. 


DURATION    OF   THE    SEALING    SEASON    IN   BERING    SEA.      241 

Captuiii  Baker,  cited  as  autliority  on  duration  of"  the 
siiiliiiii"  season,  in  tlie  Argument  of  Great  IMtain,  and  RJio,  lines. 
a  witness  called  on  behalf  of  Great  Britain,  testified 
that  tiie  last  hunting  day  hi  leering-  Sea  in  1889  was 
the  :Jlsf  of  Aiu/ust.     He  sailed  the  Vuhl 

Cii})tain  Laughliu  McLean  testified  that   he  was^jj^^'  ^''^® 
siiiliiig  the  Favourite  in  the  year  188!)  and  that  the 
last  day  he  sealed  was  the  ^ofli  of  Aufjust.     He  left  a 
few  (hiys  later.     He  did  not  leave  because  of  fear  of 
seizure,  but  because  he  "wanted  to  go  home." 

An)ert  ]3issett,  called  on  behalf  of  Great  Britain, 
tfstitied  that  he  was  on  the  Theresa  in  1889  and  that^-,'^'^'^'  ""^^ 
she  (lid  wotleave  until  the  3r(l  of  Scptemher,     The  wit- 
ness did  not  know  the  last  lowering  day. 

Captain  Albert  Folger,  of  /^e/w'/oije,"  testified  that  ^•^o^.*^^^' ^'"® 
the  last  day  he  sealed  in  1889  was  the  lOtU  of  ^^/- R.,  io82,  line 
<jmt. 

Cii|)tain  John  Steele  testified  that  he  was  in  the  sea  ^Vg^*^^**'  ^'°® 
in  1889,  and  stated: 

Tlio  first  strong  gales  that  set  in  from  the  northwest  after 
tlie  ;J()th  of  Auj/mt  we  generally  left  for  home. 

Tlie  latest  he  was  ever  ni  Bering  Sea  was  the  3fHh 
o/AHf/itst'mlHdO. 

( 'ai)tain  Alexander  MoLean,  sailing  the  3Ianj  Ellen,  ^m  J03,  line 
<t(i])|)e(1  hunting  the  25th  of  Aiif/ust  in  18S9. 

\\m.  '?.  Bragg,  called  on  behalf  of  Great  Britain, 
testified  that  the  25th  of  Aiifjiistwus  the  last  lowering ^^55' 
•lay  of  the  Ma()(fie  Mac  in  the  year  1889. 

\\n\.  J.  Goudie,  witness  called  on  behalf  of  Great 
l*)ritain,  stated  that  his  vessel  stayed  in  the  sea 
until  some  time  in  October  for  the  purpose  of  making  „  „„^  ^^^^^ 
a  raid  on  the  Pril)ilof  Islands,  but  that  the  last  lower- 
ing;' (lay  for  the  })urpose  of  seal  hunting  was  between 
the  2()th  and  25th  of  Auf/ust. 

( 'aptaiii  Hansen  testified  that  he  left  Bering  Sea  the 
iiiiilille  of  August  on  the  Adele.     He  afterwards  stated    45.    ' 
as  the   reason  that    he   could  do  nothing  with   his 
Indians;  that  "they  would  not  hunt  any  more." 


58. 


R.,  765,  line 


B  8- 


-16 


242       DUKATION    OF    THE    SEALING    SEASON    IN    BERING    SEA. 


K.,  557, 
58. 


iine 


(ya])taiii  Miner  testified  tliat  lie  left  the  sea  in  188!l 
*'tlie  iatter  part  of  August.'''' 

This  testimony  of  the  witnesses  relative  to  their 
actual  expei-ience  in  the  year  1889  establishes  that 
there  was  not  a  vessel  in  Bering-  Sea  in  September, 

1889,  for  the  purpose  of  sealing,  and  yet  in  some 
instances  the  claim  is  made  for  the  sealing  season 
extending  until  the  1st  of  October. 

The  testimony  relied  upon  to  thus  extend  the  dura- 
tion of  the  voyages  of  these  vessels  which  were  inter- 
rupted by  the  cruisers  of  the  United  States  relates 
entii'ely  to  the  year  1890.  There  are  no  claims  before 
this  High  Commission  for  vessels  warned  in  the  year 

1890,  and  the  testimony  relating  to  that  year  is  remote 
when  used  for  the  purpose  of  establishing  the  dura- 
tion of  the  season  of  1889. 

Consitlering  the  testimony  of  all  the  witnesses  relat- 
ing to  the  voyages  of  vessels  in  1890,  the  weight  of 
testimony  supports  the  statements  made  relative  to 
the  duration  of  the  season  in  former  years. 

R.,  665,  liue  Captain  Victor  Jacobsen  tCvStified  that  the  last  day 
of  hunting  in  1 890  was  the  21st  of  August.  He  sailod 
the  Minnie. 

E.,  658,  liiio  Captain  Chas.  Ilackett,  a  witness  on  behalf  of  Great 
Britain,  of  the  Annie  C.  Moore,  said  that  he  gave  up 
sealing  on  the  11th  of  August,  and  tliat  he  stopped  on 
.iccouiit  of  bad  weather. 

R.,  606,  line  Captain  Clarence  Cox,  master  of  the  Triumph  in 
1890,  testified  that  the  10th  of  August  was  the  last  day 
he  hunted  in  that  year. 

R.,  558,  line     Captain  Miner,  commanding  the  AUie  I.  Alger  in 
^^-  1890,  testified  that  he  left  "along  the  first  part  of 

September." 

Captain  Laughlin  ]\IcLean,  commanding  the  Favour- 
ite in  1890,  testified  that  the  last  day  he  lowered  was 

E.,  751,  li-ethe  14th  of  August,  and  stated  that  the  weather  was 

E.  754  line  ^^i^^^^^ly  woi'se  ill  the  last  part  of  August  than  it 
10-  was  in  July  or  the  first  of  August. 


DURATION   OF   THE    SEALING   SEASON   IN    BERING    SEA.        243 

Captain  Jolm  Steele,  of  the  Theresa.,  testified  that  r.,  1078,  line 
the  2llth  of  August  was  the  hitest  he  was  ever  in  Ber-    ^^' 
iii;i  Sea,  and  that  was  tlie  year  1^00.     His  last  sealing  r,^  io78  line 
ill  tliiit  year  Avas  on  the  :2Hth  day  of  August.  42. 

Captain  Albert  Folger,  of  the  Penehpe.,  testified  tliatR.,  io83,  line 
the  last  sealing'  day  in  181)0  was  about  the  2(iih  of     ^^• 
Anniist. 

Captain  Frederick  Paine,  of  the  W.  1\  Say  ward,  in 
the  \ear  181)0,  testified  that  the  last  lowering  day  wasR.,  1725,  line 
about  the  28th  of  Any  list.  '  13- 

Theodore  Magneseii  said  of  the  voyage  of  the  Sea^^^^^'  "°® 
Lion  : 

0.  And  when  did  you  leave  the  sea  in  September! 

A.  I  left  it  on  the  14th. 

(}.  So  that  from  the  first  to  the  14th  yon  caught  300  seals? 

A.  I  think  so;  pretty  near. 

Q.  Was  there  pretty  good  weather  in  September? 

A.  September  was  flue,  the  first  part  of  September. 

().  In  fact  you  did  better  work  in  September  than  you  did 
in  August? 

A.  Yes;  I  did  nothing  in  August,  nor  in  July,  either.  It 
was  too  stormy. 

Q.  So  that  these  people  who  tell  us  you  can  not  fish  in 
September  on  account  of  the  weather,  they  don't  know  any- 
tliing  about  it,  do  they.  Captain! 

A.  Oh,  no;  you  can  get  lots  of  seals  in  September. 

This  witness  is  cited  in  the  Argument  for  Great 
Britain  as  a  witness  called  on  behalf  of  the  United 
States.  He  was  called  on  behalf  of  the  United  States 
for  the  purpose  of  ascertaining  information  relative 
to  the  catch  and  the  duration  of  the  sealing  season. 
Xo  witness  examined  on  behalf  of  Great  Britain  was 
over  asked  regarding  the  duration  of  the  sealing  sea- 
son. This  witness,  however,  was  the  mate  of  the 
Minnie  at  the  time  of  her  seizure  and  was  afterwards 
a  A\  itness  on  behalf  of  Great  Britain  in  the  claim  of 
till'  Minnie,  and  was  a  sealing  captain  out  of  the  port 
of  \'i('toria. 

Cai)tain  Robert  E.  McKeil,  a  witness  on  behalf  of%^''^>  ^''""^ 
Great  Britain,  testified  relative  to  the  voyage  of  the 


i 


244       DURATION    OF    THE    SEALING    SEASON    IN    BERINO    SEA. 


B.,711,liue4. 


R.,   723,  line 

48. 
R.,  724,  lines. 


R.,  1940,  line 
34. 

R.,   770,  line 
3.J. 


E.,  (377,  line 

43. 
R.,  757,   line 

49. 


E.,  ll?<6,  line 
40. 


R.,  61(),  line 
47. 


E.  B.  Marvin  in  181)0,  and  said  tliat  the  last  day  df 
Iiiintiii}^'  was  the  SOth  or  o*/.s/  of  Aitf/usf. 

Cai)tain  Louis  Olseii  testified  that  the  Jiianlta  left 
the  sea  "tlie  2iid  of  September."  He  coukl  not  state 
the  hist  lumting-  (hiy. 

Ca])tain  W.  JS.  Bjikor  testified  rehitive  to  the  vov- 
a<^e  of"  tlie  Viva  in  the  year  1890,  stating  tliat  he  took 
seals  eight  days  in  September;  that  he  remained  in 
the  sea  and  that  his  last  sealing  day  was  the  Jj^th  of 
Septcmhey. 

Ca})tain  Siewerd,  whose  testimony  was  not  takeu 
in  court,  but  whose  statement  was  taken,  said  tliat  he 
left  the  sea  on  the  0th  of  September,  in  1890. 

William  O'Leary,  testifying  relative  to  the  voyage 
of  the  Walter  L.  Rich,  in  1890,  said  that  he  left  the 
sea  "some  time  towards  the  end  of  August,"  and 
added  that  he  did  not  think  he  was  ever  in  Bering 
Sea  later  than  the  26th  of  Auf/ust. 

AVillinni  G.  Goudie,  testifying  relative  to  the  voy- 
age of  the  Sapphire,  in  1890,  said  that  they  left  the  sea 
on  the  17th  or  18th  of  August.  Captain  Cox  testified 
he  left  xVugust  lotli. 

Herman  Smith,  testifying  in  behalf  of  Great  Brit- 
ain, said  that  he  was  on  the  KatJierine  in  1890,  and 
left  the  sea  on  the  81st  of  Aufjust. 

Gustavo  Hansen,  master  of  the  Allele,  testified  that 
he  left  the  sea  the  12th  of  Aufiust. 

The  testimony  shows  that  but  three  vessels  actually 
sealed  in  liering  Sea  in  the  month  of  September, 
during  the  entire  period  from  1886  to  1890,  inclusive, 
These  three  vessels  are  the  Mountain  Chief,  in  1888, 
which  took  sixty  seals  in  the  Pass,  a  place  in  which 
the  Record  discloses  the  boats  of  no  other  vessel  were 
ever  lowered,  and  this  was,  therefore,  a  chance  pick- 
up of  seals.  The  Vim,  in  1890,  which  took  370  seals 
in  September;  and  the  Sea  Lion,  in  1890,  which  took 
"about  300  seals  in  September." 

The  total  number  of  seals  taken  by  hunters  who 


DURATION    or   THE   SEALING   SEASON    IN    BERING   SEA.        245 

(stilicd  on  the  witness  stand  at  Victoria  anionnted  to 
ueiirl\'  78,(>0(),  The  total  number  taken  in  Sciiteni- 
lii-r  was  730.  Tlie  proportion  taken  in  the  niontli  of 
S('])t('inl)er  is  as  one  to  one  hiUKh'ed. 

Tlic  I'nitetl  States  contend  tliat  there  is  no  fact  in 
the  iu'cord  so  firinl}'  estaldislied  as  tlie  fact  that  tlie 
tcniiiiiation  of  profitable  seal  hunting  in  Jierin<i' Sea 
w;is  between  the  20th  and  25th  of  Au<;-ust. 

The  Arg-unienton  behalf  of  Great  Britain  cites  the  ^'jj*-^^ '*»'•'  ?• 
witness  Steele  as  sayin^-  that  there  are  "  some  fine 
ilays  in  Se})tember,  and  that  some   fine  catches  are 
iiiiide  in  that  niontli."     Captain  Steele  was  never  in  R.,  i078,  line 


40. 


'-'', 


liue 


Hciiii^i'  Sea  in  September,  according-  to  his  testimony 

( "ajjtain  liaker  is  cited  as  remaining-  in  the  sea  until  ^^ 
tlu'2iidof  Sei)tember.     The  record  discloses  that  his 
lust  sealing-  day  was  August  27. 

The  statement  is  made  that  Captain  Jacobsen  re- 
luaiiied  in  the  sea  in  1888  until  the  7th  of  Se})tem- 
Ixr.  The  testimony  of  Captain  Jacobsen  states  he 
left  the  position  in  the  sea  where  he  was  sealing, 
September  3,  and  does  not  state  when  he  hunted  last 
bi't'ore  that  date. 

The  statement  made  that  in  certain  years  there 
WW  only  a  limited  number  of  boats  (naming  them) 
which  remained  in  the  sea  without  interference  is 
if»n-{!cted  by  the  testimony  liere  given. 

The  testimony  cited  in  this  Argument,  estabhshing 
till'  termination  of  the  hunting  season  in  liering  Sea, 
<l(X's  not  rehate  to  the  voyages  of  vessels  warned  or 
interfered  with  by  revenue  cutters.  Wherever  the 
testimony  disclosed  that  the  voyage  was  interfered 
with  in  any  manner  no  reference  has  been  made  to 
the  testimony. 

The  statement  made  in  the  Argument,  of  the  latest  ^^g^*- j'^^s-^p- 
V(i\  ;iges  ever  made  in  Bering  Sea  and  all  made  in 
tlio  year  1890,  corrected,  would  read: 

'Sr(  Lion,  14  September;  Viva,  12  September; 
Orcdii.  Belle,   6    September;  Jtuwita,   2    September; 


ii 


246       DURATION    OP    THE    SEALING    SEASON    IN    BERING    SEA. 


R.,  462,  line 
65. 


W.  F.  Say  ward,  28  Aug-iist;  Penelope,  26  Au<,niHt: 
E.  B.  Marvin,  31  xVugust. 

The  average  of  tliese  dates  is  September  5. 

Captain  Alexander  McLean  is  eited  in  tlie  o))p()-  r^r 
Argument  and  the  observation  made  that  the  answer 
stating  that  he  "figured  on  getting  back"  al)out  tlie  last 
of  August  and  the  10th  of  Septendjer,  and  the  answer, 
which  is  not  given  in  full  in  the  British  Argument, 
that  he  generally  returned  to  San  Francisco  by  the 
11th  of  Septendjer,  is  inconsistent  with  his  testimony 
"about  the  20th  of  August  I  would  consider  the  end 
of  the  season.     I  u.sed  to  leave  the  sea  then." 

The  Conunissioner  on  the  part  of  the  United  bi^t  , 
asked,  at  the  time  this  testimony  was  given,  if  there 
was  any  inconsistency,  and  called  attention  to  the 
fact  that  the  later  time  included  the  time  re(][uinHl  to 
make  the  return  voyage. 

In  conclusion,  every  witness  whose  testimony  is  in 
the  Record,  when  asked  generally  regarding  the  close 
of  the  sealing  season  in  Bering  Sea,  fixed  the  terniimi- 
tion  of  })rofitable  hunting  as  l)etween  the  20th  and 
25th  of  August.  There  is  no  testimony  in  the  Record 
given  by  a  captain  who  was  in  the  sea,  and  therefore 
based  upon  actual  experience,  extending  the  season 
into  the  month  of  September. 


METHOD   FOR   COMPUTINO  THE   ESTIMATED   CATCH" 

DISCUSBBD. 

Tliiit  portion  of  the  Ar<>'uiiit'iit  on  belialf  of  Great 
liiitiiin  entitled "jMethodforConiputinfj^  tiie  Etstinuited 
Ciitch"  possesses  tin  oriffinality  whicli  n)akes  it  uni(iue 
imionj^  the  fornudiv  wliioli  have  previously  been 
ciiiployed  in  dealing-  with  the  subject  of  proba- 
liilitics.  While  the  I'^nited  States  insist  that  "pros- 
pective profits"  can  iiot  be  allowed  in  any  event, 
iiiid  furthermore  that  the  continj^encies  which  neces- 
siuily  appertain  to  seal  huntin«»'  precliule  tlie  results 
tVom  becf)ming'  a  legitimate  field  for  mathematical 
(lenionstration,  the  method  for  computation  proposed 
is  s(>  extraordinary,  so  unjust,  and  so  unreasonable, 
tliiif  it  can  not  be  passed  over  Avithout  comment. 

In  brief,  the  scheme  advocated  is  this:  to  take  the 
("itch  of  the  schooner  3f(Uij  Ellen  in  1S86,  which 
tiiuk  in  that  year  the  laiy/cst  timiihrr  of  .skhis  ever 
taken  1)1/  ami  vessel  in  Berinf/  Sea  of  which  we  have 
t'vidonce,  and  calculate  from  the  data  of  the  voyage 
hnw  many  seals  were  secured  on  tiie  average  by  one 
of  lu;r  hunters  during  the  period  from  the  date  of  the 
seizure  or  warning  of  the  vessel,  for  whicli  the  catch 
is  being  computed,  to  the  24th  of  August,  the  day 
when  the  Mary  FAlen  ceased  hunting. 

11  le  scheme  is  complicated  by  a  cahndation  of  prob- 
iihle  liunting  days,  which  makes  the  method  more 
in\  (lived  without  affecting  the  result;  for  example,  in 
tile  case  of  the  Carolena,  given  in  the  Argument  to 
demonstrate  the  application  of  the  system  i)rop<)sed, 
it  is  stated  that  5  boats  on  the  Marij  Ellen  were  in  the 
soii  24  days,  which  would  equal  120  days  for  1  boat; 


247 


24S 


ESTIMATED    CATCH    DISCUSSED. 


that  the  "  l(>\veriii<ji'  diiys"  were  (iSA,  and  the  ciitcl 
5)08;  that  tlie  4  caiKtes  of  the  (Uirolctia  wouhl  have 
been  in  tlit^  sea  31  days,  or  124  days  tor  1  canoe;  the 
fornnda  then  adopted  is  tliis: 

yr)8^6.s.r)Xi24     .        ^  ,,        ,,.,,,,, 

/Vo-X       ,  .,.  =  the  i)rol)abu-  eatcli  oi  tlie  Caromm. 

It  is  a})]»areut  tliat  6Si,  tlie  nund)er  of  hnutino-  dav!>, 
is  su])ertlu<Hw,  and  can  have  no  effect  U))on  the  result. 
This  factor  u»f  " l.o weriiiji-  days"  a])|)ears  to  liave  heeu 
inserted  in  the  ])rol)l(Mn  for  tlie  j)urpose  of  niakino- it 
seem  more  plausihle,  while  in  fact  it  only  tends  h> 
com[)licate  aiid  mystify.  Strippetl  of  its  supei+luoiis 
factor,  the  f<>rinula  pi-ojM»»*ed  in  the  Arjj^uinent  is  this; 
The  catch  of  the  Mury  EJlcti,  J'roni  the  date  of  seizure 
(or  uuirtilnff)  of  the  sehiHuter fa  Anf/nst  :J4,  di- 
vided bji  the  iiiunber  of  hoata  mi  the  Marij  EJleti,  times 
the  numh^r  of  days  f rota  the  date  of  .seizure  (or  iraruiiiii) 

of  the  schmifrr to  Auf/usf  ^-^,  and  nndtiplied  hj 

the  numlter  of  boats  (or  canoes')  (m  the  schaot/er 


times  the  number  of  daifs  frotn  dnte  of  seizure  (or  irani- 
infi)  to  tl}:'  j»resuiii(dt/e  close  of  the  season,  equals  thr 

proliable  mtck  of  the  schooner . 

The  fiicts.  which  it  is  necessairy  to  assume  in  order 
that  this  method  of  calculation  may  be  applied,  are 
so  numerous,  and  at  the  same  time  so  uncertaiu  in 
themselves,  that  it  is  difhcult  to  understand  how  such 
a  niathematical  sctlieme  coidd  have  been  sug'g'ested  to 
the  High  ( 'ommission  as  a  means  of  determiniuo- 
ap])roxiniate  certainty.  "^Phat  these  assumptions  arc 
recoj^nized  in  the  Argument  on  liehalf  of  (ireat  Hritaiu 
m  shown  in  the  illustration  they  ;i'ive  of  the  applica- 
tion of  the^ir  fjnnula.     The  Argument  says: 

Br.  ArK.,  82,  If  these  four  men  fhuiiters  on  the  Caroleiui]  had  been  irort 
iufi  in  Ncaiinff  iratrrs  ihniiifi  the  irhole  of  Aufintit,  iceather  (tnd 
other  comliiions  luiiif/  similur  1o  thai  tuyperieneed  hy  tlie  Mary 
mien,  tin'  total  would  h*'.  (Mc. 

These  aHsumpTion>as  to  the  duration  o^  the  seaHn{j 
"^ovaye  in  Bering'  Sea,  the  universalit\'  of  weather  in 


line  13 


liiffen'nt  i» 
iiin'  xcssel 
selves  pro 
surticielit  ( 
licture  the 
;ir  niiothei 
witli  in  th 
lit"  the  sea 
ill  liering 
limiting," 
( )n  revi 
no  atteni) 
(ircaf   Hri 
du'  seasoi 
;nva  in  w 
iiictho<l  I 
the  rami! 
that  then 
tuund  the 
.it'  (ilreat 
iiitch. 

The  fo: 
widu-.ttn 

Ir  is  slid 
Hiiiiil  nuiB 

An  exji 

what  e\\ 
'.lumerou 
I'inr  tor 
ratio  bet 
of  two  \> 
this  poin 
tain  Mel 
The  W 
tc-iimon 

<>.  Wh 
i'omi»ariit 


ESTIMATED    CATCH    DISCUSSED. 


249 


iie  catch 
uld  liave 
nioe;  the 

Cnrolena. 

ii'  days, 
le  result, 
ive  I  teen 
a  kino-  it 
tends  \u 
pei-tiiums 
It  is  tins: 
>/  .scizurr 
i  ^4,  di- 
Icn,  fime.s 
Irani  niji) 
fip/ied  hif 

or  mini- 
quais  th 

ill  <»r(lei' 
>li('(l,  are 
ertaln  in 
low  .such 
i^ested  to 
'riniiiiiig- 
ions  are 
t  Britain 
a])[)li('a- 

een  irorh 
ither  (did 
the  Marji 


sealing 


ith 


liitlei'ciit  ])arts  of  the  waters  t'retiueiited  by  the  seal- 
iii<i'  xpssels,  and  "other  conditions"  are  all  in  them- 
selves )>rol)al)ilities,  mid  ko  |)rol)leni{itie  as  to  demand 
sufficient  demonstrati* >ii  of  their  apjiroximate  certaintv 
lictorc  tliev  can  he  enijiloyed  as  a  basis  for  arrivinti' 
;ir  another  jirobability.  They  have  been  fullv  dealt 
with  in  this  Argument  under  the  titles  of  "Duration 
lit'  the  seulin«>'  seaaon,"  "  No  defined  sealinji'  o-romids 
in  Px-rino'  Sen,"  and  "Uncertain  character  of  seal 
huntinj^',"  to  which  reference  is  here  made. 

I  )n  reviewing  these  assunn)tions,  to  establish  which 
11(1  attempt  is  made  in  the  Argument  on  behalf  of 
(ireaf  Britain,  except  in  relation  to  the  duration  of 
ilic  season,  the  abundance  of  seals,  and  the  limited 
urea  in  which  they  are  found,  yet  without  which  the 
method  propo.>ed  c.n  not  be  apjilied,  it  is  apparent 
the  ramilications  of  these  proba})ilities  are  so  wide 
that  there  is  not  the  slightest  liasis  upon  which  to 
tniiiid  tlui  formula  proposed  in  the  Argument  on  behalf 
lit'  (Jreat  Britain  for  a  computation  of  an  estimated 
i"itch. 

The  following  statement  appears  in  the  Argument 
>virh(..;t marginal  reference  to  the  Kecord: 

It  is  shown  tliat  boars  took  about  one-tbird  more  than  an  Br.  Arfr .  79, 
•'qiial  luuuber  of  canoes.  lino  tt. 

An  exiimination  of  the  Kecoi'd  fails  to  discdose  upon^-'^.^'.^i^",'?''" 
uliat  evidence  tins  statement   is   l){ised.      there  are    65. 
!!uinerous  witnesses  who  testify  that  a  boat  is  su])e-    31*  "'    '"° 
rim-  fttr  seal  huntiii'i-  to  a  canoe,  but  evidence  of  a  R-,  72it,  Hue 
ratio  between  them  is  altogether  lacking,  excejit  that 
lit  two  witnesses,  who  make  definite  statements  ui)on 
this  point,  viz:  (Captain  Alexaiuler  McLean  and  Ca])- 
taiii  .McKiel. 

The  former  in  his  examination  gave  the  following 
te-nmony: 

<,>.  What  in  your  judgment,  from  your  experience,  is  the  11.,  424,  Hue 
I'oiiinarative  value  in  He»i!:;<>'  of  canoes  to  boats!  ^* 


250 


ESTIMATED    CATCH    DISCUSSED. 


A,  It  will  take  more  than  two  canoes  to  compete  with  a 
good  white  hunter. 

Q.  You  mean  with  Indians  in  it  ? 

A.  Yes,  sir;  I  have  found  them  to  be  so,  and  have  heard 
it  from  other  vessels.    Of  course  there  are  exceptions. 

Q.  Name  the  exc'e])ti()ns. 

A.  Some  vessels  with  Indian  hunters  nmke  very  large 
catches. 

Q.  Is  that  because  of  the  skill  of  those  Indians? 

A.  Yes,  sir. 

Q.  Those  are  exceptions,  are  they  not  ? 

A.  They  are. 

The  answer  of  Cai)taiii  ^LcKlel  to  a  question  relat- 
ing- to  the  pro})ortionate  liuntinj^'-  power  of  boats  and 
canoes  was  as  follows: 

R.,_329,  line     Well,  I  can't  say ;  but  I  think  six  good  white  hunters  would 
^^-  be  equal  to  ten  canoes — the  average  canoes. 

Q.  You  are  now  compiiring  white  hunters  with  Indians  in 
canoes? 
A.  Yes. 

No  witnesses  were  produced  to  contradict  these 
statements. 

Althoug'h  there  is  no  attempt  to  establish  the  asser- 
tion in  the  Arj^ument  on  behalf  of  (Ireat  liritain,  find 
no  other  reference  is  made  to  the  subject,  it  is  of  tlu^ 
greatest  importance  in  any  attempt  to  reach  a  basis 
from  which  to  calculate  a  "prolmble  catch,"  for  of  all 
the  vessels  for  which  chiims  nre  made  for  such  eavn- 
ing"s    before    this    Hi<»-h  C'onunission,  but    four — the 
g-'-''.;yiue8.  T//orw/oM  in   1886,  and  the  Trium/)h,  rath/inder  and 
39."   '        Ariel  in   1889 — employed  sealino-  boats  with  wliite 
^■,'..'^^^'  ^"^®  hunters.     In  the  case  of  the   Carolcud  canoes  were 
R.,  a29,  lino  used,  and  althouah  the  Ar<>"ument  on  behalf  of  (ilreat 
liritain  assumes  that  two  white  men  in  a  canoe  are 
e(pisd  to  three  in  a  boat,  all  the  evidence  which  is 
worthy  of  consideration  tends  to  disprove  the  assump- 
tion. 

Ketm'niug-  to  the  fornuila  projxised,  h^t  us  a])i)ly  it 
R.,  2S0,  Uue})v  substitutiuj4'  in  place  of  tlie  Mar//  K/li'ti.  the  Tliorn- 

R.,  842,  linoton.     The  latter  entered  the  sea  on  July  2,  188<);  was 
is. 


ESTIMATED    CATCH    DISCUSSED. 


251 


ite  with  a 


ive  beard 
)n8. 

ery  large 


on  relat- 
oats  jiud 

era  would 
ndians  in 

ct  these 

le  fisser- 
\mn,  jiiid 
is  of  the, 
1  a  basis 
or  of  iill 
ell  ojirii- 
>ur — the 
der  aiid 
fi  white 
es  were 
»f  (ireat 
noe  are 
'hic'h  is 

ISSUIllj)- 

ijiply  ir 

Tliarn- 

K)';  was 


t'ized  Aiig-ust  1.     Slie  carried  four  liiiiiting- boats  with  ,  J    932  u^g 
////vv  men  in  a  boat,  and  her  catch  up  to  tlie  time  of    i''- 
seizure  was  403. 

As  it  nmst  be  assuiiied  in  the  Aro-unient  on  belialf 

'( Treat  Ih'itain  in  co]n|mting'  the  catch  of  the  Thorn- 
ton by  the  proi)osed  method,  tliat  her  hunters  were  as 
expert  as  those  of  the  Mari/  IJUen,  and  her  fortune  in 
fiiidinn-  seals  equal  to  that  of  the  latter  vessel,  the  same 
iissimiption  is  adopted  for  the  purposes  of  this  Arg-u- 
iieiit.  The  average  catch  per  day  for  each  hunter 
ifii  the  Thornton  Avould  be  for  the  thirty  days  she 
was  sealing,  3.3f>.  Ap})lying  this  average  to  the 
extension  of  the  Caroh'mi\s  voA'age,  as  presumed  by 
the  Argument  on  behalf  ot  Great  Britain,  her  catch 
would  be  417  seals.  It  may  be  argued  that  it  is  not 
ii  just  comparison,  from  the  fact  that  the  hunting  of 
the  Thornton  took  place  in  July,  while  the  operations 
(it  the  Marij  Kllcii,  on  which  the  calculation  is  based, 
were  in  August.  The  il/rtr// 7!J//t'w  in  thirty-four  days 
I  111  or  to  August  1  took  1,437  seals,  while  in  twenty- 
air  days  in  August  she  took  958,  the  daily  average 
in  July  exceeding  that  for  August.  If  there  is  any 
iid\antage,  tlierefore,  it  is  in  tavor  of  the  Carolena. 

Another  fact,  to  which  the  attention  of  the  High 
('(•lumissioners  is  called,  is  that  the  daily  average  of 
a  hunter  on  the  Mary  KUen  in  July  w^as  S.41  seals, 
ami  for  a  hunter  on  the  Thornton  was  3.36. 

As  a  further  test,  let  us  substitute  the  W.  P.  Say- 
ininl  for  the  Mary  Ktlen, 

It  is  stated  in  the  Ih-itish  Argument  tliat  the  record  nne^^.'s.' 
•  it'  the  W.  P.  Sayiranl  is  incom])lete,  but  an  examina-  270. 
tioii  of  the  testimony  of  Andrew  Laiiig  discloses 
rliat  the  data  furnished  by  him  is  suflicient  for  the 
purpose  of  computin>.r  and  estimating  a  catch  by  the 
method  ])rop()sed,  as  we  have  shown  that  the  data  in 
I'l'Liard  to  "lowering  days"  are  superfluous. 

l''urthermore,  there  is  no  evidence  before  the  High 
Commission  showing  that  the    W.  P.  Sayward  was 


Ma 


252 


ESTIMATED    CATCH    DISCUSSED, 


E.,  1098, 
17. 


E.,  271, 

8. 
E.,  1098, 

12. 


E.,   710. 
28. 


E.  172.5, 
8. 


iutorfered  witli  during  lier  cruise,  and  Lain<>',  her 
mate,  and  a  witness  sworn  on  l)elialf  of  Gh'eat  Britain, 
was  not  (juestloned  on  this  ]ioint. 

!"'«  It  slhuild  also  be  noted  tliat  tlie  last  "lowerinji;"  of 
tlie  W.  I*.  S(()/irar(l  was  the  same  dixy  as  tliat  of  tlie 
2\Iari/  Elh'u.     Tlie  former   in    die    year    1886  oar- 

^'""ried  eij^-ht  canoes.     ITci   catch  tor  the  iirst  tweiitv- 

liuefour  da3's  «;f  August  was  512.  The  average  dailv 
catch  for  one  canoe  during  these  twenty-four  days 
was,  therefore,  1.81)7.  Assuming  for  the  sake  of  argu- 
lULiut,  and  for  the  purj)Ose  of  comparing  this  l)asis 
with  the  one  employed  h\  Great  Jiritain,  that  the 
CV((>'ofc»f?  would  have  sealedthe  entire  month  of  August, 
we  would  have  an  average  catch  dunng  that  month 
for  each  canoe  of  57.8;  and  the  four  canoes  used  hv 
the  Garolcva  would  have  taken  231  seals. 

Again,  let  us  take  the  W.  P.  Sai/ivard  in  1889  as  a 
basis  in  place  of  the  Mavji  FJIcn.     She  entered  the 

i'"«sea  that  A'ear  on  Julv  7,  and  lowered  last  on  Aiijj-ust 
18,  a  i^eriod  of  forty-three  days'  hunting.  She  carried 
14  canoes,  and  made  a  catch  of  1,812:  the  average 
per  day  for  each  canoe  would  be,  therefore,  3.241. 
One  canoe  for  thirty-one  days,  the  time  claimed  as 
the  intended  voyage  of  the  Carolei/a,  would  at  this 
ratio  have  taken  10<)  seals,  and  an  estimated  catch 
for  the  Cdfolc Nil's  4  canoes  would  theref(^re  be  400. 

line  Take  the  same  vessel  in  1 890.  She  entered  the  Sea 
June  29,  and  lowered  last,  August  28,  which  would 
be  sixty-one  days  of  sealing,  in  which  time  she  took 
in  the  neighborhood  of  500  skins;  each  of  lier  8  canoes 
had,  therefore,  a  daily  average  catch  of  1.024  skins, 
and  for  the  thirty-one  days,  assumed  as  the  duration 
of  the  Cardlaia's  voyage,  the  4  canoes  of  the  latter 
schotmer  would  have  taken  128  seals. 

On  the  basis,  therefore,  of  the  W.  P.  Saijirnrd  for 
the  three  vears  1881),  1889,  and  18!I0,  we  have,  by 
adopting  the  inethod  proposed  in  the  Argument  on 
behalf  of  Great  Britain,  the  following  variations  as 


in«'"  of 

of  the 

N()   car- 

wentA'- 

ir  (lays 

f  argu- 

l)asis 

hat  the 

:Vll<>'USt, 

:  iiKnith 


ESTIMATED    CATCH    DISCUSSED. 


?53 


an  estiaiated  catt'l  for  the  CaroJena  dnrino-  the  month 
ot'Aiio-iist,  viz:  231,  400,  and  128. 

\\\'.  may  also  com])are  the  catches  of  the  Mary  Ellen 
and  tlie  Carolena  during-  the  month  of  July,  1886,  for 
the  purpose  of  reaching-  a  ratio  of  the  hunting  power 
lit'  a  boat  used  on  the  Mary  Ellen  cind  a  canoe  used 
on  the  Caroleiia.  The  catch  of  the  Mary  Ellen  from 
the  2<Sth  of  June  to  the  31st  of  July,  inclusive,  was 
1,4.')7  seals,  which  would  be  a  daily  average  of  8.41 
seals  for  each  hunter.  The  Carolena,  assuming  that 
lier  soiding  practically  began  on  the  1st  day  of  July",  K-.  376,  iiue 
took  in  thirty-one  days  684  seals,  or  an  average  per 
(lay  for  each  hunter  of  5.ol. 

Such  examples  of  the  ap})lication  of  this  method  of 
computing-  catch  might  be  multiplied  to  the  full  extent 
of  the  data  relating  to  the  70  vessels  given  in  the  e\d- 
dencc  produced  before  the  Commission;  but  the  fore- 
ii'oiiig  are  deemed  sufficient  to  demonstrate  how  false 
the  assumptions  and  how  faulty  the  method  proposed. 

When  these  claims  were  originally  presented  to  the 
I'iiited  States  in  the  case  of  Great  Britain,  suljmitted 
to  the  Paris  Tribunal,  the  metluMl  of  reaching  an  esti- 
mated catch  for  the  claimants  of  1886  was  by  means 
(if  a  computation  based  ui)on  the  average  number  of 
skins  secured  by  thirteen  vessels  sealing  in  that  year. 
Why  this  method  was  abandoned  on  the  part  of 
(iicat  Britain  is  n])])arent  from  an  examination  of  the 
(lata  for  1886,  which  is  ])rinted  in  a  tiible  attached  to 
this  partof  the  liritish  Argument.  '^Phe  average  reached 
in  the  origiuMl  schedule  of  claims  was  sutistantially 
the  same  as  the  Bering  8en  catcli  of  the  Mary  Ellen, 
Used  iu  the  present  method;  Init  from  the  testimony 
liiNcn  in  connection  with  Exhibit  13  of  the  declara- 
tiniis  made  by  J.  1).  Warren,  as  agent  for  the  chiim- 
nnts,  it  appears  that  the  average  in  the  table  was  R.,  287. 
ithtained  from  the  catch  for  the  eotire  season.  In 
order,  therefore,  to  maintain  the  average  wliich  was 
luhanced  in  the  original  scheme  of  estimating-  the 


254  ESTIMATED    CATCH    DISCUSSED. 

])robable  imrnber  of  seals  which  wouhl  have  been 
taken  by  a  sehoonei*  seized  or  warned,  it  was  neces- 
sary for  the  claimants  to  adopt  some  other  method 
than  one  based  npon  an  average  of  the  catches  of  tlie 
vessels,  the  data  of  which  were  given  in  evidence. 
No  other  plan  than  the  one  presented  by  the  Argu- 
ment on  behalf  of  Great  liritain  could  possibly  give 
such  large  results  or  be  more  satisfactory  to  the 
claimants. 

A  careful  examination  of  the  items  for  "  Estimated 
Balance  of  Catch,"  appearing  in  the  schedule  attached 
to  the  consideration  of  the  separate  claims  in  the 
British  Argument,  testing  each  by  the  formula  sug- 
gested, fails  to  disclose  how  the  numbers  claimed 
were  reached.  For  example,  the  claim  for  the  Anna 
Beck  is  8,000  skins,  while  calculated  as  proposed  the 
"  probable  catch  "  would  have  been  4,082  ;  the  Min- 
tile's  claim  is  3,500,  according  to  the  formula,  4,298; 
the  TW»wjj// (1 881)),  3,500  claimed,  5,852  computed; 
and  the  Ariel^  2,086  claimed,  3,43G  calculated. 
In  the  majority  of  cases  these  skins  claimed  as 
"an  estimated  catch"  are  less  than  would  have 
resulted  from  an  application  of  the  "il/«r?/  Ellm 
method,"  while  in  a  few  instances  the  claims  exceed 
the  calculated  catch.  The  arljitrary  cliange  of  the 
figures  resulting  from  an  application  of  the  method 
of  calculation  proposed  shows  that  it  could  not  have 
been  deemed  satisfactory  or  equitable  even  when 
suggested. 
--  .  Inmiediately  })receding  that  portion  of  tlie  Argu- 
ment in  which  the  mode  of  calculating  "probable 
profits,"  based  on  the  catch  of  the  Mary  Ellen,  is  ex- 
plained and  advocated,  there  appear  five  tables,  giv- 
ing what  j)ur])orts  to  be  a  summary  of  the  evidence 
in  regard  to  the  vessels  sealing  in  Bering  Sea  in  the 
seasons  from  1886  to  1830,  inclusive. 

In  view  of  the  method  suggested  in  the  opi)Osing 
Argument,  the  ol)ject  of  this  table  is  not  apparent. 


It  certainl; 

o'iviug  the 

liii.sc  an  en 

ticipated  tl 

that  it  is  f 

aiiiitlier  sd 

had  been  ( 

no  opporti 

new  bases 

Itisbeli 

|iresented 

the  most  \ 

rtiul  the  o 

of  inathei 

Attentic 

(ireat  Bri' 

year  1890 

of  the  Un 

at  issue;   i 

fniin  the  1 

testimony 

for  the  CO 

evaiit,  an( 

missioner 

1)0  recove 

'Hie  pc 

of  testim 

the  year 

(iicat  Br 

as  f(dlow^i 

The  se: 

There  if 
luit  that  il 
in  the  min 
nation  of  ] 
sioii  agen 
course,  if 
would  be 
take  the 
•lucstiou  i 


ve  been 
s  iieces- 

inotlioil 
es  of  the 
vidence. 
le  Argii- 
Ay  give 

to  the 


ESTIMATED    CATCH    DISCUSSED. 


256 


It  ((ntHiiily  can  not  be  presented  for  the  purpose  of^'j. -^'S:'  '^i' 
i|iviii<i'  the  Connnisfiioners  other  data  ui)on  which  to 
lijisc  an  estimate  for  "})robable  oatdi,"  nor  is  it  an- 
ticipated tliat,  liaving-  advocated  a  method  and  insisted 
that  it  is  fair  and  just,  Great  liritain  would  suggest 
aiiotlu'r  scheme  of  comj)utation  after  this  argument 
had  l)een  dehvered  and  wlien  the  United  States  had 
no  opportunity  to  re])ly  to  such  new  proposition  and 
new  bases  for  the  calcuhition  of  a  "su})posed  catch." 

It  is  beheved  by  tlie  United  States  that  Great  Britain 
invscnted  to  this  Iligli  Connnission  what  was  deemed  • 

the  most  j)lausible  method  to  be  adopted  on  the  facts, 
imd  tlie  one  which  tliey  considered  to  be  most  easy 
of  lujithematical  demonstration. 

Attention  is  called  to  the  fact  that  at  the  time  when 
Great  liritain  offered  evidence  as  to  the  catch  for  the 
year  1890,  it  was  strenuously  objected  to  on  the  part 
of  the  United  States  as  being  remote  to  the  questions 
at  issue;  and  at  the  same  time  it  shoidd  be  noted  that 
fidiii  the  first  the  United  States  have  insisted  that  alP*-'  ^^^• 
testimony  offered  for  the  purpose  of  founding  a  basis 
for  the  computation  of  a  "probable  catch"  was  irrel- 
evant, and  ought  not  to  be  entered  upon  by  the  Com- 
missioners, on  the  ground  that  future  i)rolits  (!Ould  not 
1)0  recovered  by  the  claimants. 

'Die  portion  of  the  Record  relating  to  the  admission 
of  testimony  in  regard  to  the  IkM'ing'  Sea  catch  for 
tlie  year  1<S9(),  which  was  orif/iHdU//  presented  by 
(beat  liritain,  and  is  now  ap])arently  abandoned,  is 
as  f(tllows: 

Tlie  senior  Counsel  on  behalf  of  the  United  States:  ^-^g^-^-  ^'°* 

There  is  no  probable  catch  claimed  for  1890,  and  we  sub- 
mit that  it  is  remote,  and  the  same  rule  would  cover  as  was 
in  tlie  minds  of  your  honors  when  you  excluded  any  exami- 
nation of  Mr.  Alexander,  the  United  States  Fishery  Commis 
i^ioii  agent,  by  us,  as  to  the  catches  of  1894  and  1895.  Of 
course,  if  there  was  a  probable  catch  claimed  ibr  J 890  there 
would  be  no  question  about  it  under  your  honors'  ruling  to 
tak(!  the  testimony  as  to  probable  catches,  reserving  the 
4nestiou  for  future  argument.    There  is  no  question  here  as 


256 


ESTIMATED    CATCH    D[SCUS8ED. 


to  the  cases  of  seizures  in  188G,  where  they  claimed  the 
probable  catch  for  1887,  or  the  seizures  for  1887,  where  they 
claimed  the  probable  catch  for  1888. 

Tlie  Coniniissioiier  on  the  part  of  Her  Majestv: 

I  do  not  remember  what  was  ruled  before,  but  it  seems 
to  me  that  the  catch  for  any  reasonable  year,  especially  after 
the  time  in  respect  to  which  the  claim  is  nuide,  would  have  a 
bearing,  because  presumably  the  seals  are  not  appreciably 
greater.  Therefore,  at  all  events,  within  a  limited  number  of 
years  they  may  be  considered  to  be  about  the  sa^ie  in  niun 
ber,  and  the  catch  in  any  year  to  be  reasonably  close— not 
getting  too  remote  from  the  date  in  question — would  seem  to 
me  to  have  a  very  obvious  bearing  upon  the  probable  catch 
for  the  year  in  question.  If  we  have  ruled  out  evidence  of 
this  kind  in  1894,  the  proper  course  would  be  to  allow  that 
evidence  to  be  given,  if  it  is  cousidered  that  1894  is  not  too 
remote. 

Tlie  Coiiiniissioner  on  tlie  ])art  of  the  United  States; 

It  was  ruled  out  after  very  careful  consideration. 

The  Commissioner  on  tlie  part  of  Her  Majesty: 

The  evidence  might  not  be  admissible  in  1894,  because  at 
that  time  the  mode  of  sealing  was  changed  after  the  regula- 
tions came  in  force,  and,  of  course,  with  a  changed  mode  of 
sealing  the  circumstances  would  not  be  the  same  and  the 
evidence  would  not  be  applicable;  but  it  would  be  otherwise 
where  the  mode  of  tishing  is  the  same. 

It  wonltl  seem  from  the  fact  that  Great  Britain 
having-  offered  so  mnch  testimony  in  reg'ard  to  1890, 
and  all  the  other  years  from  18S6  uj)  to  that  time, 
there  was  premeditated  dnring*  the  early  sessions  of 
the  Commission  at  Victoria  a  plan  to  reach  a})proxi- 
mate  certainty  by  means  of  applying-  the  g-enera! 
average  of  a  larg-e  amount  of  data  in  relation  to 
catches  of  other  vessels  for  those  five  years;  but  that, 
in  examuiation  of  the  testimony,  it  was  found  that  in 
a  large  number  of  cases  the  evidence  was  in('om})kte, 
and  in  a  still  larger  immber  was  uncertain,  throu^j^h 
numerous  contradictions  in  the  te8tim<my  of  different 
witnesses.  This  ground  for  the  conclusion  apparently 
reached  by  Great  Britain  is  reasonable,  and,  as  the 


ESTIMATED    CATCH    DISCUSSED. 


257 


riiitcfl  States  conceive,  fully  justified  by  au  exainiua- 
tiou  of  the  Record. 

Piobability,  from  the  time  that  it  has  been  treated* 
as  a  branch  of  mathematics,  has  always,  in  deducing 
a  future  event  from  known  past  events,  dealt  with  the 
(jiR'stion  of  general  average.  Without  general  aver- 
a<;<',  probability  is  mere  chance.  It  is,  therefore, 
coiitidently  believed  that  the  High  Commissioners  Enoyi.  Brit, 
will  not  adopt  any  method  of  computation  which  p.  768.  ' 
excludes  an  average  resulting  in  approximate  cer- 
tainty. That  a  reliable  general  average  can  be 
reaolied  from  the  evidence  is  denied,  and  it  is  asserted 
that,  even  if  there  were  a  legal  basis,  which  the  United 
States  insist  there  is  not,  for  the  adoption  of  methods 
employed  by  mathematicians,  there  is  before  the  High 
Coininission  no  adequate  data  for  the  application  of 
the  rules  which  relate  to  the  science  of  probabilities. 
B  s 17 


THE  VALUE  OF  SEAL  SKINS. 

Theodore  Liibbe,  a  purchaser  of  seal  skins  in  the 
city  of  Victoria  since  the  year  1875,  was  the  only 
competent  and  experienced  witness  called  on  behalf 
of  either  ])arty  to  this  controversy  who  gave  general 

^'^f^^'  ^'""testimony  of  the  value  of  seal  skins  in  the  market  of 
Victoria  in  the  years  when  the  seizures  by  the  United 
States  were  made. 

Mr.  Lubbe  testified  that  the  Alaska  Commercial 
Compan}-,  of  San  Francisco,  at  that  time  lessees  f''om 
the  Government  of  the  United  States  of  the  Pribi  of 
Islands  (R.,  1S83,  line  28),  Ees.senger  &  Co.  (R.,  18%, 
line  (55),  The  Hudson  Bay  Company  (R.,  1891,  line 
GO),  Liebes  tt  Co.,  of  San  Francisco  (R.,  1931,  line  23), 
I.  &  A.  Boscowitz  (R.,  1932,  line  21)  and  himself, 
representing  Martin  Bates,  Jr.,  &  Co.,  of  New  York, 
were  purchasers  of  seal  skins  in  the  market  of  Victo- 
ria in  the  vear  1886;  that  J.  Uhlman  &  Co.,  of  New 
York  (R.,  1883,  line  29).  Liebes  &  Co.,  of  San  Fran- 
cisco (R.,  1883,  line  35),  the  Hudson  Bay  Company 
(R.,  1883,  line  3lj),  J.  Boscowitz  (R.,  1890,  line  35), 
and  himself,  representing  Martin  Bates,  Jr.,  &  Co., 
were  purchasers  of  seal  skins  in  the  market  of  Victoria 
in  1887;  that  Walter  Boms,  Joseph  Uhlman,  of  New 
Y'ork,  H.  Liel)es  &  Co.,  of  San  Francisco,  himself, 
representing  Martin  Bates,  Jr.,  &  Co.,  The  Hudson  Bay 

^•^g^^^*' ^*"®  Company,  and  I.  &  A.  Boscowitz  were  purchasers  in 
the  market  of  Victoi'ia  in  1889. 

In  the  year  188G  all  skins  taken  in  Bering  Sea 
and  on  the  coast  by  seal  hunters  from  the  port  of 

258 


mmmm 


THP,    VALUE    OF    SEAL    SKINS. 


259 


nie 


Victoriii  were  sold  in  tlio  markets  of  Viotoria  <>  San 
Friiiu'isco.  There  is  no  evidence  in  tlie  Hcc-ord  of 
iiiiv  sales  in  that  year  elsewhere. 

Theodore  Lubbe  i)ur('hased  in  that  year  at  Victoria  ^'^^2, 
16,7!>7  skins.  H.  Liebes  &  Co.,  of  8an  Francisco, 
piucliased  on  the  coast  in  1886,  7, 063  skins,  and  the 
Alaska  Coininercial  Company  bonjifht  a  lar<i-e  (jnantity 
iif  skins  in  Victoria  that  year.  The  witness,  Theodore 
kuhhe,  was  the  aij-cut  for  the  sale  of  the  Man/  FJk'i)''s 
skins  in  the  year  1886;  in  fact,  as  he  stated,  "I  owned ^^-jg^^^'  ^'"^^ 
ill  litr,"  and  sold  the  skins  to  the  Alaska  Connnercial 
Company's  representatives  at  Victoria  for  !^6.50  a 
skin. 

In  that  year  Hessino-er  &  Co.  were  paving-  from 
n;.;')!)  to  S7  per  skin.      Lnbbe  testified:        ^  R. ^^1893,  line 

i}.  Mr.  Lubbe,  there  were  ])urcliases  nf  the  Bering  Sea 
lutcli  here  in  Victoria  in  1&>>6 f 
A.  Yes,  sir. 

Q.  Can  you  tell  me  what  they  were  sold  fort 
A.  The  highest  I  know  w;:s  -It  and  the  lowest  -^G.oO. 

The  market  valne  of  seal  skins  in  the  market  of 
Victoria  in  the  vear  1886  is  therefore  definitelv  fixed      ' '  ■ 

as  l)('tween  86.,')()  and  87.  The  claimants  demand  the 
liiii'hest  price.  They,  should  be  allowed  the  average 
market  price. 

hi  the  year  1887  there  were  no  skins  sold  directly 
l)y  owners  of  sealing  vessels  in  any  other  market  than 
ill  the  markets  of  Victoria  and  »San  Francisco.     In 
that   year   Liebes   &   Co.    pur(;hased    17,1)06    skins.  K-,  1900. 
^loiris  ^[oss  was  buying  for  the  Liebes  firm  in  the    23.     ' 
market  of  San  Francisco  that  year. 

A  total  catch  of  10,200  in  Beriuif  Sea  was  all  pur- 
( liased  in  Victoria  l)y  Uhlman,  Liebes  &  Co.,  Hudson  Kv^1883,  line 
Hay  Company,  and  Lubbe. 

The  only  witness  sworn  as  to  the  market  value  of 
skins  in  tlie  city  of  Victoria  in  the  year  1887  was 
Tiieodore  Lubbe,  who  testified  that  he  purchased  from  r.,  1882,  line 
Charles  Spring  &  Co.,  on  the  10th  day  of  October,    ^^" 


260 


THE    VAI>UE    OF    SEAL    SK1N8. 


18S7,  1,6'J5  st'al  skins,  at  S4.50  eacli,  and  the  witness 
added : 

^'00^**^'  ^'"®  1*'"''  instance,  in  tlie  Berin{4'  Sea  tlie  schooner  KatediA  not 
contain  any  gray  pups  to  speai;  of;  slie  may  have  contained  a 
few,  but  in  the  others  the  juips  are  included. 

^'i/iie  if:'^^'  T"  ^1»<'  Argument  on  l)elialf  of  ( ireat  Britain,  Clnirlcs 
Sprinji'  is  cited  as  liax  in«i'  sold  liis  skins  tliat  year  tor 
$7.  IfCy'liarles  8})rin^'  sold  any  skins  that  year  at  ^^^T, 
it  was  mueli  earlier  in  the  year  than  the  ear^^'o  of  skins 
from  any  of  the  vessels  seized  wovdd  have  been  landed 
in  Victoria.  The  fact  is,  a('cordin<>'  to  the  books  of 
Mr.  Liil)be,  that  he  received  ^^t.riO  for  each  seal  skin 
of  the  Btruitj  Sea  catch  of  his  schooner  Kate  in  that 
year. 

R.,^1883,  lino  Uhln.an  ct  Co.,  of  New  York,  bouo-ht  of  Minisie 
the  2,377  seal  skins  taken  l)y  the  roth  finder,  at  ^^6 
])er  skin. 

^^li^^l^''^^'      The  statement  is  made  in  the  Argument  on  Ijelialf 
of  Great   liritain  that  the  skins  sold   bv  Mimsie  to 
Uhlman  Avere  less  valnable  because  of  the  numberof 
gray  })ups  contained  in  the  lot. 
Lnl)l)e  testified: 

Amongst  these  2,377  tlicre  may  liave  been  10  or  15  gray 
pups,  wliicli  would  change  my  figures  slightly,  but  would 
not  amount  to  anything. 

E.,  1883,  line  Lubbc  bought  rlie  I'oiehtpe's  collection  of  1,000 
skins  at  So.oO.     This  same  year,  1887,  Lubbe  states 

R.,  1884,  line  that  skills  were  sold  at  the  following  ])rices  hi  Victo- 
*•  ria:  Other  skins  from  tlie  Pathfinder,  85.50;  from  the 

Penelope  and  Theresa,  $5  25. 

I  think  they  are  subject  to  a  very  slight  increase  on 
account  of  a  few  gray  pups.    It  would  not  amount  to  any 
more  than  5  cents  per  skin. 
E.,  1881,  line     Q.  And  all  these  skins  were  Bering  Sea  skins,  or  northern 
13.  coast? 

A.  Yes,  sir;  Bering  Sea  skins. 

Q.  Could  you  give  us  the  date  of  that  last  purchase? 
■       ':.:■,        A.  October  11,  1887. 


E.,  1883,  line 
32. 


THE  VALUE  OF  SEAL  SKINS. 


261 


Mr.  Lubho  testified  tliat  in  1HH7  he  made  tlii.sR|^i'*'<-' '•"« 
iiiciiioninduin  in  iiis  hook:  "  Uhlnuui  appeared  to 
liiivc  enough.  Davis  (Uhhnan's  a«;^ent)  could  liave 
lioujiht  a  h)t  at  85."  Examined  as  to  the  average 
iiiMikct  price  of  skins  in  ISS?  in  the  city  of  Victoria, 
Mr.  liuhbe  said: 


R.,  1933,  line 


il  In  1887  would  $5.50  be  a  good  fair  average? 

A.  I  should  think  so;  yes,  sir. 

Q.  F(>rf\)!» 

.V.  Yes,  sir;  for  all. 

This  means  Bering-  Sea  skins. 

Captain  Warren,  examined  as  to  tlie  market  price 
((f  skins  in  the  year  1887  at  Victoria,  said: 

(I.  What  was  the  ruling  market  price  of  skins  in  Victoria  K-.  1872,  line 
ill  tiie  year  1887  iu  the  fall!  ^^' 

A.  Well,  as  near  as  I  can  remember,  it  was  about  !S5.50, 
what  the  buyers  were  paying  here. 

This  testimony  conclusively  establishes  that  the 
iiiiirket  price  of  fur  seal  skins  in  the  city  of  Victoria  in 
till-  fall  of  1887  was  iSo.oO.  There  isVo  other  testi- 
iiKtiiy  in  the  Record  bearing-  upon  the  average  market 
liiice  of  seal  skins  at  Victoria  in  that  year. 

.Vtfidavits  originally  filed  by   the  (claimants    and^-'^^*^- 
t'uuud  in  the  British  case  presented  to  the  Tribunal  of 
Arl»itrati(m  at  Paris  were  read  into  the  Record. 

The  affidavit  of  Capt.  James  D.  AYarren,  prepared 
in  ('((unection  with  the  claims  of  the  Jh1pJiiti,t\\ii  (inice, 
tlu'  Sai/tvard,  and  the  Am/a  JUrk,  claimed  for  each  seal 
skin  seized  85.50,  tlie  market  value  at  Victoria  in  the  ^7^^'^'^^'  ^^^^ 
year  1887. 

The  affidavit  filed  iti  connection  with  the  claim  of 
tlic  Ada,  which  was  made  on  the  JJth  day  of  Decem- 
lj<M-,  1887,  claimed  for  the  seal  skins  seized  by  the  R.,  looi,  line 
ciirter  85.50  per  skin,  the  market  value  of  seal  skins    ^^■ 
in  Victoria  in  1887. 

riie  value  of  seal  skins  in  the  year  1888  is  not 
directl}'  involved,  and  the  testimony  is  not  important. 


.mii 


262 


THE    VALUi;    OF    HEAL    SKINS. 


The  claim  is  iiiude 
the  yejir  188f». 

yir.  Lii1)l»e  testifiwl: 


i»r  >^11   tor  endi  skin  seized  in 


R.,  1HH6,  line     Q.  Yoii  have  been  aakad  to  Hay  whether  a 


IG 


H.,  1938,  line 
32. 


■n  sum 
would  be  a  fair  average  erf  the  northwest  coast  catch  as 
Lampson  chissifted  theau  ii.  IHSO,  uiid  you  altw)  say  that  that 
is  not  11  fair  way  to  jret  mi  ;.verage  price  for  Bering:  Sea  .skins. 
Can  ynii  (fire  uit  the  awrmfff  jnrioe  for  Berinff  iSett  nkins  for  the 
year  li^nii:' 

A.  You  tn«aai  a  sum  im  iji»ud(Hi  and  lieref 

(^.  Take  it  both  ways,  if  ;.(»u  can,  or  if  you  cam  not,  give  us 
either  one  way  or  the  otli«r. 

A.  The  price  lior  irnti  *>  .7 '  and  S7.00  in  1SS9.  The  imce  in 
London^  I rnkmiifd  think.  irtntUi  rangr  hetireen  SH.io  ami  .*.9..Vy; 
the  net  ri;»mlu  to  siiijtiKirx  c.rtntrtinff  skin*  iconld  he  between 
Si).lO  and  ifn.54j,  the  irvnu'ct   fttiltn. 

Mr.  Liabhe  afterwards  srited  that  h^  made  a  sale  in 


£.,  1933.  line 
44. 


London  iii  ISS!)  at  >;7.7(i  j^'skin.      He  ayain  testified 
con(*enuii»i-  the  marivet  prict-  m  Victoi'ia  in  i885t: 

Q.  Takm^r  them  as  they  ran  '.' 

A.  You  can  not  do  that.  If  vou  take  7T>  per  cent  Bering 
Sea  aiiid  ur»  ]M3r  cent  coast  catc:^  the  averiiise  wouUl  be  more 
than  *7.1iO, 

Q..  But  as  they  ran  in  lissj)  rrom  your  kMOwle<ige  of  the 
market.  !*7^*0  wouhl  be  a  fair  a"ST^rage,  wouhl  it? 

A.  Yes;  I  should  tliink  so. 

In,  -much  a>  many  skins  ^^ized  from  the  schooners 
in  IH'^H  were  of  tlie  coast  catch,  this  averag'c  price  of 
^7.2('  ]»er  skin  in  Victoria  would  seem  to  l)e  a  fiur 
value  for  the  skins  taken  from  the  schooners.  The 
liii^'hest  market  ,>ri('e  »tf  skins  in  Victoria  in  1HS9  was 
between  S7.75  and  >^7.6(). 

There  is  no  testimony  in  the  Record  op])osedto  tliis, 
and  in  the  Arin'ument  on  i)ehalf  of  (ireat  Britain  the 

^'ffi  H'^^'iTP''^'^^  '*^  skins  is  dismissed  with  one  state'.nent  tluit 
Mnnsie  says  that  he  sold  some  in  London  tor  Nil. ()<>'|. 

E..  1863,  line  Miuisie  testified  as  to  sales  made  in  London  in  tlie 
vear  188!).      Tie  sold  some  at  is?. 92.     He  sold  other 

*-2o.^^'^'°° skins  in  188!)  at  88.1()i|.  The  date  of  that  sale  was 
October  30,  1889.  He  tc^iified  that  he  sold  one  lot 
for  811.00^. 


The  cla 
111  the  Br 
irail  into  t 
Victoria. 

( 'harles 
lonnectioi 

The  marl 
about  the  t 
that  time, 

Sanuiel 
tinii  with 
Nn\(Mnbe 

Tilt'  selli 

lUTiVill    of 

tiiuo  sealii 
season's  v( 

The  af 

a  refereiv 

The  cl 

in  the  Ar 

is  no  test 

don  in  th 

I  if  anv  d 

year  18!" 

Warren  i 

is  that  . 

;:Teat   mi 

toria,  set 

at  tlu^  ai 

Tliis  1 

and  the 

show  th( 

Tlic  (ml 

nicnt  ev 

stated  tl 

l)ut  ^-av 

Miinsie. 


THE    VALUE    OF    SKAL    .SKIN8. 


263 


'eized  in 


snni 

catch  as 

that  that 

^ea  skins. 

«.v  for  the 


give  usi 


If 


price  in 
f  between 


i\  jsnic  in 
testified 
i8!): 

t  Bering 
I  be  more 

re  of  the 


liooiiors 

l)ri(Tof 

e  a  f;iir 

*.      The 

^S9  was 

to  tlllN 

fiiii  rlie 

lit  tlijit 

ll.OO-]. 

1  ill  file 

1  otlier 

lie  was 

>ne  lot 

The  clMiinants,  ill  the  orijjfiiui)  aflidavits  (•ontniiu'd'^-.i?^! ''•> 
ill  the    British  case  filed  at  Pjii">,  and  which  were 
nad  into  the  Record,  all  claimed  the  market  value  at 
\'ict(tna. 

Charles  Sin-ino-,  in  his  affidavit  made  in  1889,  inK.,  looo,  line 
roiincction  with  the  claim  of  the  Kate,  said: 

Tlie  market  value  of  seal  skins  at  Victoria  aforesaid,  at  or 
about  tlie  time  the  Kate  arrived  from  said  voyage  and  since 
that  time,  was,  and  now  is,  $8  per  skin. 

Saiiuiel  Bucknam,  in  the  affidavit  made  in  connec- 
tion with  tlie  claim  of  the  Ariel  and  sAV(^rn  to  in 
N'ovcmber,  1889,  said: 

Tlio  selling  price  of  seal  skins  at  said  Victoria  on  the  said^.,  1900,  line 
anival  of  the  Ariel  and  on  the  Ist  October,  about  which    '^^* 
tiiin'  sealing  vessels  usually  arrive  at  Victoria  from  a  fall 
season's  voyage,  was  $8  per  skin. 

The  affidavits  of  all  the  other  claimants  contained 
a  icfereiice  to  tlie  market  vnhie  at  Victoria. 

The  claim  in  made  for  the  market  price  at  London, 
ill  the  Aro-nment  on  behalf  of  Great  Britain.  There  ^rit.  Arg., 
IS  no  testiintniy  ot  the  tiiarkcf  value  oi  skins  in  Lon- 
don in  the  years  1886  or  1887.  There  is  no  evidence 
of  any  direct  shipment  by  sealers  to  London  in  the 
year  1887.  The  statement  is  made  that  Captain 
W  arren  ship[)ed  skins  to  London  in  1887.  The  fact 
is  that  J.  Boscowitz,  who  was  and  had  been  for  a 
uieat  many  years  a  purchaser  of  seal  skins  in  Vic- 
toria, sent  his  skins  to  London,  where  they  were  sold 
at  the  auction  sales  for  his  account. 

This  shipment  was  not  made  bv  (.'aptain  Warren,  i^^.^i*'it8>  P* 
and  the  papers  intnxluced  in  evidence  on  tlieii'  face 
show  the  shi])ment  was  made  by  Jose])h  Bosc<twit5{. 
The  only  other  testimony  in  the  Record  of  any  ship- 
iiH'iit  ever  made  to  L(tndon  was  o-jvcii  by  Hall,  who 
stated  that  he  made  one  shipment  to  Lomhui  in  1888, 
hilt  o-ave  no  account  of  the  sale,  and  the  testimony  of 
Miinsie. 


2()4  THE    VALUE    OF    SEAL    SKINS. 

Liil)be  sjiys  tlie  market  jtrice  in  Loiuloii  in  iSSfi 
was  s!).40  Ui  >;!).50  net  at  X'icloria. 

The  United  States  contend,  as  stated  in  anotlicr 
part  of  tliis  Ar<iinnent,  that  the  ])rice  of  the  seal  skins 
seized  is  fixed  by  tlie  market  price  ruling-  in  the  cit - 
of  \'ic'toria  at  the  time  that  the  vessels  would  have 
delivered  their  skins  there  for  sale.  No  rule  of  law- 
is  more  firndy  established  tlian  that  wdiich  declares 
that  in  case  of  a  loss  of  cargo  before  a  voya«;,*'  it  sea 
is  completed  the  value  of  the  carg-o  is  deterruht-l  by 
the  market  value  ruling-  at  the  port  of  departure. 

Not  oidy  were  no  contracts  put  in  evidence,  but 
no  evidence  was  offered  that  any  of  these  claimants, 
with  two  exceptions,  eve}/  inicnded  to  sell  their  skins 
on  the  London  market.  Tliat  there  was  a  market  at 
Victoria  for  the  sale  of  skins  is  af)undantly  estab- 
lished,  and  that  the  claimants  would  have  sold  their 
skins  in  the  port  of  Victoria  is  beyond  ([uestion.  lu 
any  event,  had  the}'  testified  that  they  intended  to 
sell  in  London,  the  market  value  rulinfjf  in  London 
could  not  control.  That  would  be  allowing  damages 
based  upon  speculation,  and  no  such  rule  of  law  has 
ever  been  established  by  any  court. 

The  United  States  claim  that  the  value  to  be 
awarded  for  seal  skins  sei/:ed  in  the  VcU'ious  rears  is 
as  follows:  hi  188(),  between  >S6.5<)  and  87;  1N87, 
$5.50;  1889,  $7.20  to  $7.75. 


ill  l.s,S^) 


*eal  skins 
the  cit" 

uld  liuve 
e  of  law 
declares 


^4■ 


sea 


■t-iby 
ture. 
pnce,  but 
laiiiiants, 
leir  skins 
luirket  at 
ly  estab- 
i(M  their 
tioii.     In 
emhd  to 
London 
damages 
'  law  has 

le  to  be 
I  years  is 
7";   1N87. 


EVIDENCE  RELATING  TO  VALUE  OF  VESSELS. 

The  evidence  presented  to  the  Connnissioners  for 
the  purpose  of  establishing*  the  value  of  the  vessels 
seized  l)y  the  United  States,  and  which  l)e<'ame  total 
losses  to  their  owners,  may  be  divided  into  three 
heads:  '  ■  * 

First,  actual  sales  which  took  place  at  the  time  of 
the  seizures. 

Second,  the  opinions  of  witnesses,  conipetent  from 
(i('('U[)ation  and  experience  as  exjterts  uptm  the  market 
value  of  vessels  at  that  period,  as  to  the  value  of  the 
vessels  seized. 

Third,  the  cost  of  building-  vessels  of  a  class  similar 
te  th(»se,  for  which  claims  are  presented,  at  the  time  of 
the  seizures. 

Ill  discussing"  the  method  of  reacliing"  a  ])roper 
vahiation,  cimnsel  on  behalf  of  Grreat  Britain  said: 

I  propose  to  show  that  there  a. :  ten  or  fifteen  vessels,  and 
tliat  those  vessels  actually  cost  so  much  to  buikl.  1  propose 
to  sliow  that  by  the  very  best  evidence. 

The  connnissioner  on  behalf  of  the  United  States 
siii:gested  that  actual  sales  of  similar  >essels  at  that 
time  would  g'ive  some  idea  of  the  market.  To  this 
the  reply  was  made: 

/  (on  f/oiny  to  prove  the  actual  salea  and  the  actual  cont  o/H.,120. 
some  vessels, 

Ayain  he  said: 

iloMT  can  I  show  better  the  value  than  by  giving-  evidence  ]{_  103. 
as  what  vessels  were  sold  tor  at  thai  time. 

In  view  of  these  statements  of  counsel,  we  would 
■niiicipate  that,  under  the  first  class  of  evidence  sub- 


26ti 


EVIDENCE VALUE    OF    VESSELS. 


initt('(l,(lreat  liritiiiii  would  have  proved, or  atteini)t('(l 
to  prove,  a  nuinljerof  sales  at  the  port  of  Victoria  of 
vessels  suitai)le  for  sealing-  duriii'j'  the  period  from 
18<S5  to  1888,  iiielusive.  Hut  no  witnesses  were  pro- 
duced on  behalf  of  the  claimants  in  reference  to  such 
sales  except  in  the  case  of  the  seized  schooner  Ctiro- 
lena,  although  the  record  discloses  tiiat  at  least  ten 
vessels  changed  ksands  at  Victoria  during  those  years. 
As  these  sales  are  deemed  of  chief  iiaportance  in 
determining  the  pvices  ruling  in  the  Victoria  market 
at  that  time,  it  is  pr«>])Ose(l  here  to  submit  a  summary 
of  the  evidence  relating  thereto,  classified  according 
to  the  years  in  which  the  transfers  took  place. 

1885  OR  1886. 

Alexander  The  Alfred  Ailums  (68.75  tons)  was  sold  at  Victoria 
K.!4i2^i'iueto  Gutiuan  &  Frank.  But  Frank,  who  was  a  wit- 
1^-  ness  on  behalf  of  (Jreat  Britain  before  the  Commis- 

sioners, was  not  questioned  as  to  this  sale. 

Alexander  The  Black  I)iat)t<nt<i  (81.57  tons)  was  sold  at  Victoria 
R.4i2lijne'i^><*^i<  the  same  time,  and  was  jmrchased  b}' the  same 
25-  firm,  but  no  questions  were  asked  the  witness  Frank 


coiicernmg  this  sale. 


R. ,  1760,  line 
10. 


lleiiry  Paxton,  a  witness  for  Great  Britain,  and 
part  owner  of  the  vessel,  in  188G  stated  under  cross- 
exainludfion  that  Gutman  bought  one-fifth  of  her  in 
1885  or  188(1,  and  that  witness  did  also,  and  that  he 
(Paxton)  j)aid  8500  for  his  one-fifth.  In  November, 
R.,  1761,  line  1887,  h«^  sold  his  interest  to  Gutman  for  the  same 
*■  consideration. 

1.S80. 

The  Acfivr  (40  tons)  was  sold  at  Victoria  for  about 

^McLefn' ^3,800,  to  "Gutimui  &  Co."  (i.  c.,  Gutmau  &  Fniuk, 

R.,4i7,iiner,>,  Gutmaii  was  subse(pieiitl}'  lost  up(^tn  this  vessel). 

The  witness  Frank  gives  no  testimon\'  in  regard  to 

this  sale. 


The  Fii 
s;].ii(i0,  "j 
An  elide 
t(i  contrad 
purpose  T 
ivlation  to 
nation  di^ 
knowledg* 
wliich  reft 
The  Ku 
sl.SOO.  I 
mission  ai: 
liis  direct 
(idss-CXaili 
)IrLean. 

The  M 
at  tilt'  ral 
sale  was 
liut  no  wi 
cstahlish 
The   M 
ahont  \X> 
II.  ("oope 
>tates  tha 
i.  nrodiK 
till  sale. 
The  Ji 

i^sd.    \ 

jirice  the 
(111  hehah 
of  MrLe 
as  To  the 

The  T 
evidence 
""nrcniii 

The  I 
John  Sa 


tempted 

('t<»ria  dt' 

><1  from 

ere  pm- 

to  sucli 

er  Vnro- 

east  teu 

e  years. 

tauce  in 

market 

uminarv 

t'oordiug 

e. 


Victoria 
s  a  wit- 
Uoiumis- 


Victoria 
\\\e  same 
ss  Frank 

ain,  and 
^er  crosH- 
f"  lier  in 
that  he 
vember, 
lie  sr.me 


)r  about 
IrVauk. 

vesHel). 
iganl  to 


EVIDENCE — VALUE    OF    VESSELS. 


2(i7 


The    Fdvonrifr    (71154    toii'<)  was    traiKsferred   for  ^',*,"^ ■""••"■ 

,  ,.        ^  ,,  .M  c  l,c  it  n, 

>;],(ii)0,  "just  as  she  caii'e  troui  sea.  H.,40u,nut3 

All  endeavor  was  made  on  the  part  of  Great  Britain  '*■ 
t(i  coiitradiet  tliis  testimony  of  McLean,  and  for  tliat 
jiurpose  Tlieodore  Lal)l)e  was  sworn  as  a  witness  in 
ivlation  to  the  transfers  of  tliis  vessel,  hut  his  i'>ami- 
iiatiou  disclosed  that  the  sales,  of  wiiich  he  liad 
knt>\vU^dj>-e,  occurred  in  1883  and  in  1884,  and  to 
\vhi(  li  reference  vv'ill  be  made  hereafter. 

The  Kate  ((JO  tons)  was  transferred  at  \'i('toria  for'^'^^^.^j^/^'^f,'; 
>il,SOO.     Charles  Sprinji",  a  claimant  before  the  Com-    i{.,ii'!i,'ine 
mission  and  a  })ai'ty  to  the  sale,  was  not  cjuestioned  in 
his  (Hrect  examinati<»n  re<i'ardin<>'  the  transfer,  but  on 
iidss-cxaniinafioii    he  t'orro]>orated    the    statement  ofH.,  ss*2.  line 
McLean. 

The  Man/  men  (78-80  tons)  was  s(»ld  at  \icti>ria^^;;;|f''^'j;;': 
ar  the  rate  of  ''something-  less  than  S4,r)()0."     The    e.ramiiia- 
salc  was  evidently  a  matter  of  connnon  knowledg-e,     [^2,"'  linIV 
l)ut  no  witnesjies  were  produced  by  Great  Britain  to  Alexander 
(srabHsh  the  consideration  which  passed.  k.*4(itMhie 

i'he  Morij  Taiflof  (50  ton^;)  was   sold  at  \'ictoria     ^• 
about  1886,  and  .L  D.  Warren,  the  agent  of  Thomas    McLean, 
II.  Cooper,  the  largest  claimant,  on  eross-cxamiiKttioii    K..4ia,ii"e 
states  ihat  he  purchased  the  vessel,  but  no  evidence  k.,ii66,  line 
i    produciHl  by  Great  Britain  as  to  the  incidents  of    ^^' 
tile  sale. 

T\w  Jnanifo  (4<>  ton-s)  was  sold  at  Victoria  fdiout  •^'jJi-;;^^^';'.^*; 
I^Si;.     McLean  stated  that  he  did  not  know  for  what    R.,4i2,iino 
inice  the  ve^*wl  was  s(dd,  but  n<t  witness  was  produced 
•  III  liehalf  of  Great  Britain  to  disprove  the  statement 
I't  .McLean  rhat  the  \essel  was  sold  or  one  to  testify 
a>  r  .  the  consideration. 

The  Tfieresa  ((>3  tons)  was  sold  at  Victoria,  l)ut  no'^'t^"^!!?/ 
cvKhiico  was  ))roduced  on  the  part  of  (ireat  Britain  R.,ii;i.Hne 
'■"!!ceruiiig  this  sale. 

The  Wanderer  (16  tons)  was  sold  at  ^Tct<n•ia  by 
•'"hii  Sabistou,  one  of  the  witnesses  sworn  on  behalf 


2(;8 


EVIDENCE VALUE    OF    VESSELS. 


of  Cxivat   liritaiu  in  re<>)U-<l   to  the  value  of  vessels. 

jj    211   line '^^''"'  ^'^*'^  **^  ^'''^  ^''^^'  ^^'^'^  elicited  tVoui  him  under  cros.s- 
15.  r.tiiiiiiiHttioii,  but  on  liis  redirect  examination  the  wit- 

"sL    '   '"*ness  ivas  not  asked  ns  to  the  roHsidfrntion,  hut  what  it 
tn.st  him  to  hnihl  the  vessel. 

H«>i<le8  the  sales  which  took  place  in  188")  and 
1886,  and  which  are  <^t"  a  special  value  in  determining 
the  market  price  of  vessels  at  A'^ictoria  at  the  time  of 
the  seizures,  the  evidence  discloses  the  following!; 
transfers,  which,  thouj>h  in  a  measure  remote,  have 
a  bearin<r  upon  the  <(uestion  under  discussion: 

ISSli. 


B-^giioO'  "°«  The  W.  P.  Smjward  (59.7J)  tons)  was  one-half  sold, 
about  the  time  she  wa«  launched,  by  Andrew  Jjuing 
to  J.  U.  Warren.  Neither  of  the  parties  to  the  sale, 
wh(^  were  witnesses  before  the  Commission,  were 
([uestioned  as  to  the  incidents  connected  with  it,  and 
the  only  source  of  information  as  to  the  consideration 

R.^  160,  line  wliicli  passed  is  Alexander  McLean,  who  states  that 
^•^^  the  one-half  was  transferred  for  S3,0()(). 

1883. 

The  Fai  oil  rite  (7!). 54  tons)  was  partly  sold  at  Vic- 
toria to  Alexander  ]\Ic[A'an.  He  purchased  sixteen 
shares  in  the  vessel  for  81,337.00  (that  is,  at  the  rate 
of  >^5,350  for  the  vessel).     The  evidence  concerning 

R.,  701,  line  this  sale  was  ))rodnc(Ml  by  (rn-at  Hritain  for  the  purpose 
of  contradicting  the  testimonv  of  McLean,  to  which 
ivference  has  been  made  above.  In  regard  to  the 
consideration   for    the    sixteen    shares    purchased,  it 

R.,  1721,  lino niust  be  borne  in  mind   that   this  was   "a  master's 

'^'^-  interest,"  and  thei'cfore  the  i)urchase  price  was  hi<ilier 

than  the  usual  valuation  of  siiares  to  ordinarv  i)ur- 

R.,    701,  hue    1  rni  .•  1  •  1  1   •      T\ 

2'j.  chasers.      1  lie  entire  vessel  was  ag'ain  sold  ni  Decem- 

ber, 18S4,  to  C.  Spring  &  Co.,  for  $4,000. 


EVIDENCE — VALUE    OF    VESSELS. 


2(19 


t"  vessels. 

<  ler  rrosa. 
the  wit- 
ioh((t  it 


ft 


'^.sr,  and 
enniniiio' 
time  of 
tollowiiiff 
ote,  liave 
11: 


lialfsold, 

nv  Laiiig 

tlie  sale, 

i>ii,  were 

til  it,  and 

sifleration 

itates  that 


d  at  Vic- 
d  sixteen 
;  the  rate 
mceriiing' 
B  purpose 
to  which 
'd  to  the 
bused,  it 

11  luster's 
IS  lii<)'her 
i\ry  ))ur- 

I)ecein- 


18.S4. 


For  tli("^\V'^"'"i«'" 

,      M  c  I^  o  a  n , 

(finrdnf    K'.,ii;o,  Hue 
Cniarles    '"»• 


Tlif  h'dte  (<)()  tons)  was  one-tliird   sold. 
|iiir)Mise   of   oxj)luiiiiiig   u    valuation   of   the 
liimiLilit    out    on    the    cross-exaininution   of 
S|iriiiy',  the  bill  of  sule  to  C.  Spring"  &  Co.  was  pro- 
,hit<iK  showino-  that  the  eoiisiderution  was  S'J,80().      ^^•.^/"*' 

The  MoHiita'in  Chief  (20  tons)  was  sold  ut  \'ietoriu 

tu 

tiiiled  to  prodiiee  a  witne.. ^ 

with  the  sale  or  to  contradict  the  testiiuony  of  McLean. 

The  Oinninl  (So  t(nis)  was  sold  to  (J.  Sjiring  tt  Co. 

for  >^2,2<)0.     This  testinionv  was  brought  out  on  the 


line 


soiiietlihiii'  less  than  SnOO,"  but  (ireat  Bntain^^^i^'/'^'l^;^ 
ess  to  u'ive  the  facts  connected    K.,t09,  line 


notis-rxa  in  illation  of  Spring  abo\e  referred  to. 

188!l. 


K.,  879,  line 
(52;  890,  line 


The  Tiinnqyh  (97  tons)  was  sold  at  Victoria  to  :Mar>\;^^'^°/^;'/ 
viii  und  Cox  by  E.  C.  Baker  for  88,000  or  89,000.    k.,'4i3,iine 
('n\  and  Baker  were  both  sworn  as  witnesses  on  be-R.'/46i,  Hue 
half  of    the    claimants,   but   neither   was  ([uestioned    ^• 
(111  ilireet  examination  in  retrard   to  this   sale.     Mr. 
J)iil<er  however,  on  cross-cxaiiiiiiaf'oi/,  stated  that  the 
vcsx-l  was  sold  on  October  11,  188;\  fVu-  89,000,  "forR.,  i43i,  line 
(vei  ythiiig,  as  she  was  then  lying  in  the  harbor."     The    ""' 
Trhnujili  had   7   regular  hunting  boats  and  2  other 
li(i;its  in  her  outfit.     The  cost  of  the  7  hunting  boats  r.^  1422,  line 
was  ^755.     She  carried  at  least  16  guns  for  white,  *8- 

I  1    1  '       1  -n      !■        ^  1  •.•        H.,  U26,  line 

luiiiters,  and  her  bills  tor  nrearms  and  ammunition  19. 
aiiKKinted  to  8776.70.  She  had  returned  from  Ber- 
ing Sea  in  July,  and  therefore  presumably  had  re- 
maining a  considerable  portion  of  her  provisions,  ani- 
"itiuition,  and  other  supplies  on  board  at  the  time  of 
tile  sale. 

Ill  the  year  188G,  there  appear  to  have  been  22 
vessels  actually  engaged  in  sealing,  from  the  port  of 
Viitoria.  Of  this  number,  12  had  their  ports  of  origin 
on  the  Pacific  Coast  of  the  United  States,  1  (»n  the 
Atlantic  C'Oast  of  the  United  States,  1  in  Nova  Scotia, 


270 


EVIDKNCE VALUE    OF    VE8SEL8. 


find  H  ill  liritisli  Columbia;  of  wliidi  latter  iiuiiilicr 
Apii.B.  p.37.  ^"^^^  ^  were  hiiilt  at  Victoria,  and  these  in  the  vears 
1S81  {.nd  18.S2.  It  is  apjjareiit  that  the  ehief  source 
of  supply  for  the  Victoria  sealing-  fleet  in  lSiS6  were 
the  shipyards  on  the  Pacific  Coast  of  the  United  States, 
and  it  is  a  matter  of  common  knowledge  that  8an 
Francisco  was  the  princijial  market  for  vessels  on  that 
coast.  Under  these  circumstances  the  market  value  ot 
sealino-  craft  in  188()  and  1887  at  the  latter  poi-f,  with 
the  custom  duties  on,  and  cost  of  delivery  at  Victoria 
of  vessels  of  that  class,  is  material  in  determiniiij;-  the 
])rice  obtaining'  at  Victoria  during-  the  })eriod  when 
the  seizures  were  made  in  Bering  Sea. 

The  actual  sales  of  schooners  of  light  bui-theii  at 
San  Francisco  during  these  years  evidence  the  rul- 
ing- market  })rices  at  that  time.     W.  H.  Thornley,  a 
witness  on  behalf  of  the  United  States  before  the  High 
K.,  1721,  iineCommissi(ni,  who  is  the  most  ex})erienced  ship  broker 
"•  in  San  Fraiicisc<i,  and  whose  firm  represents  90  per 

cent  of  the  vessels  reg-istere<l  at  that  })ort,  and  who 
has  personally  attended  to  75  j)er  cent  of  the  trans- 
fers of  sealing-  schooners  there,  testified  to  a  larg-e 
number  of  sales  of  vessels  ranging-  in  tonnage  from 
fifty  to  a  hundred  and  thirty,  of  which  he  had 
personal  knowledge  of  the  consideration.  I'lie  fol- 
lowing is  a  list  of  the  vessels  referred  to,  sold  in  188G 
and  1887,  their  tonnage,  date  of  l)uilding-,  and  the 
consideration  which  passed. 

1880. 

K.,1722,  liue     AdiUe  C.  Huzeltuw  (129  tons);  rebuilt  1885;  one- 

^^-  half  was  sold  at  the  rate  of  85,000. 

R.,n22,  line      Qoj^j^n  Gate  (93  tons);  built  in  1874;  one-eighth 

was  sold  at  the  rate  of  $5,000. 
R.,  1722,  lino     Irma   (92  tons);    built  in  1883;    one-eig-hth    was 

^*^-  sold  at  the  rate  of  86,400. 

R.,  1722,  line     /mw//,0(3  (114  toiis);  built  ill  1809;  one-eighth  waa 

^2-  sold  at  the  rate  of  $4,000. 


EVIDENCE VALUE    OF    VESSELS. 


271 


miiiibcr 

lu'  years 

t  source 

^^6  were 

<l  States, 

liat  San 

'  on  that 

value  of 

ort,  witli 

Victoria 

inino-  the 

()d  wlieii 

irtlieu  at 

the  rul- 
^)riiley,  a 
the  High 
p  broker 
Is  90  per 
and  who 
lie  trnns- 

a  large 
ig-e  from 

he  iiad 
'riie  fol- 
[  ill  1,S8() 

and  the 


^5 ;  one- 
e-eiglith 
itli  was 
'htli  was 


I'lif/i'  (104  tons):  i)iiilt  in  Massachusetts  in  1H31 ;  •^-^ji"--- ''"" 
iinc-tuiirtli  was  »o\d  in  18S(i  at  the  rate  of  84,000. 

Sail  Jose  {52  ttnis);  built  in  1X8(1;  one-fourth  was R.  i722.  linr 
sold  at  the  rate  of  ^^4,200.  ^' 

1887. 

r>nrb(ini  (107  tons);  built  in  1(S77;  one-eig-hth  wasH.,  1723,  liuo 
sold  at  the  rate  of  ^o/iKJ. 

('ill/  of  San  Dk'iio  (46  tons);  built  in  ISSI;  one- i^-j^ i"33,  liuo 
tourth  was  sold  at  the  rate  of  84,200. 

I vanhoe  (ll-i  tons);  built  in  186!);  five-sixteenths  u.,  1723, line 
were  sold  at  the  rate  of  83,200.  ^•'• 

Lillie  L.  (63  tons);  built  in  1887;  one-thirteenth R-^n23, line 
was  sold  at  the  rate  of  85,200. 

Besides  the  foregoing'  sales,  Mr.  Thornley  testified 
lo  transfers  of  other  vessels  of  the  same  class  which 
apiicnred  by  the  books  of  the  San  Francisco  custom- 
house, but  of  wdiich  he  had  no  knowledge  as  to  the 
consideration  other  than  that  derived  from  the  records. 
The  list  of  these  vessels  is  as  follows: 

1886. 

I'li'ssie  Everding  (H)  tons);  built  hi  1870;  one-half'^  •,i^i«U'"e 
was  sold  at  the  rate  of  $5,000. 

Iiio  (\)3  tons);  built  in  1867;  one-half  was  sold  at^.^  1797, line 
the  rate  of  82,000.  ^^• 

John  N.  Imjalls  (1)  1  tons) ;  built  in  1 875 ;  one-eighth  R-^^i^'^^,  line 
was  sold  at  the  rate  of  84,000. 

1887. 

Anqd  Dolly  (19  tons),  built  in  1860,  was  sold  forK.,  i796,iine 
^1,000.  ^^' 

line 
line 


AUon  (84  tons),  bnilt  in  1886,  was  sold  for  83,000.  R-^i '96, 
J<ihn  N.  Inr/dlls  (91  tons),  built  in  1875;   one-sixth r.,  1797, 
was  sold  at  tile  rate  of  84,5iOO.  •^^• 

Tile  testinioiiv  of  Mr.  Thornley  was  supplemented  R-:^^*^95,  line 
iind  confirmed  by  Ca})t.  Andrew  Anderson,  a  large 
(ihip-owner  and  prominent  sliip})ing-  merchant  of  San 
Francisco,   whose   place  of   business   had   been  for 


i 


IH^ 


272  EVIDENCE — VALl'E    OF    VESSELS. 

twenty  yoars  a  rendezvous  (»f  sealers  and  otlier  sca- 
nien.  'Pl^at  the  sni)i)ly  of  sealiii'.''  vessels  was  siitH- 
<'ient  to  meet  the  deniand  is  established  \)\  a  list  of 
over  40  vessels  in  the  harhor  ot"  San  Francisco, 
which  could  l)e  utilized  tor  seal  huntin}>-  and  wliicli 
waso-iveu  ))y  Captain  Anderson;  and  Walter  Walker. 
a  witness  ]»roduc('<l  on  hehalt"  of  (ireat  Mritain,  stated 
that  \«'ssels  could  l)(^  hou^iht  cheaper  in  San  Franciscd 
K.,  180,  liuethan  in  \'ictoria,  "because  there  was  a  hum*  )uuiil)ei' 


51. 


of  schooners  there  to  choose  from." 


K'l  180,  liue  ^pin^  Canadian  duty  up(m  vessels  of  this  class  and 
R.,  406,  liue  the  cost  of  brin<iin<>"  the  same  to  Victoria  from  San 
w^^iofti  ii..„ Francisco  is  important  in  establishiim'  at  what  cost 

K.,  l^Dl,  Hue  111  T      1  1        Tr-  •  1 

46.  these  vessels  eould  be  supi)iie<l  to  tlie  Victoria  nuu'ket 

per  cent,   and  the   expense  of  brino-ino-  them  from 
San  Francisc<»  was  between  S235  and  S250. 

From  the  lists  of  sales  testified  to  as  liaving-  taken 
idace  at  Victoria,  and  from  the  lists  oiveii  bv  Mr. 
Thornley,  the  following-  tables  have  been  pre])ared 
which  show  the  averag'e  jn'ice  ])aid  per  ton  for  vessels 
actually  sold  at  \'ictoria,  and  the  average  price  per 
ton  at  Victoria  for  vessels  built  on  the  Pacific  Coast 
and  sold  at  San  Francisco  in  1886  and  1887: 


Avvraije  imec  paid  per  to u  for  veaaeh  sold  at  Vicloria, 


Tear. 


Vessels. 


1885 
or 

1886 
1880 


Alfred  Adams. 


Ton- 
nage. 


68.75 


Age  at 

time 
of  sale. 


1887 
1882 
1883 
1884 


1880 


Blacli  Di.iiiioud 81.57 

Favourite 79.r>i 

Kate 60 

Mary  Ellen 78-80 

Slary  Taylor 60 

Jiiiu'iila.l 40 

Theresa !  63 

Wanderer    ;  16 

Hl.Kk  Diamond 81. 57 

W.  P.  .Sayward 59.79 

Fiivoiirite 79.54 

Favourite 79. 54 

Kate 60 

Onward 35 

Mountain  Chief I  20 


Years. 
35 


(0) 


18 
24  I 
23, 
11 
Hi 


Cost  per 
ton. 


$30.56 
38,97 
30.00 

6.16.25 


(a) 


14 

0 
IS 
16 
22 
13 
16 


30.56 

100.00 

C67.26 

66.6" 

43.33 

02.85 

625.00 


a  Unknown. 


b  Less  than. 


e  Master's  int«re8t. 


liTid;/'  pnce 


V.ar. 


iMi; 


AddieC. 
(iiildi'nOi 

lima 

haiiliDU. 
S.iii  .lose 
liiii  liani . 
City  id'  Si 
Ivanlioe. 
I.ilv  I,... 


!.>ri     lle.ssie  El 
Inn 

.HllUl    X. 

hsT     .\n({i'l  I)i 
Alton  ... 
Barbara 
.InhuN    I 


II  ■Vmt  per  toi 
Willi  llie  doty.  1( 
from  Siiii  Franoti 

Mii'liiiUt. 

ill  conti 
of  the  Un 
sciiliuji'  ve 
trcii  at  Sa 
ill  connect 
uf  (ireat 
(.■vidcnce 
tniiisfers 
liy  (ireat 
little,  if  } 
v;diie,   be 
remote  to 


^f(ln/  'i 
Victoria  1 


Vrm  (( 
tur  s7,44: 

n  s 


EVIDENCK — VALUE    OF    VKSHEL8. 


273 


tlu'l-  S<')1- 

Viis  siirti- 
ii  list  of 
riinciscu, 
1(1  wliicli 
Wiilkt-r. 
n,  stilted 
rancisc'd 
iiuniher 


class  and 
from  San 
hat  cost 
a  market, 
years  10 
em  from 

\u^  taken 
1  by  Mr. 
])re})ared 
or  vessels 
l)rice  per 
ific  Coast 
J: 

ia. 


eat 

Cost  per 

alo. 

Ion. 

tr». 

35 

nr) 

$30.66 

18 

38.97 

24 

30.00 

23 

6.56.25 

11 

11 

s 

u 

») 

30.56 

0 

100.00 

1.5 

o67.26 

IB 

56.67 

22 

43.33 

i;t 

02.85 

15 

625.00 

Intel 

est. 

.|ifl'(i(/i  price  per  ton  at  i'ivtoriii  for  ve»»elH  hnill  on  the  I'avifir  t'oimt  ami 
»old  at  A'aii  I'raiiciHco  in  iSSi.  uml  /S.S7. 


V.ar. 


VoHsel. 


t'iiiit  Thoi nUi/  lint. 


l^Hl; 


.\(lilii'  ('.  Ilii/.cltine. 

(idlilriiOate 

lirim 

Ivaii)iou 

S:u\  .J<).m< 

Iliiihani 

lily  111'  Sail  Dli'ijo.. 

Uiiiiliiii) 

I.ilvl 


Secund  ThHrnU'y  lint. 


1"<7 


lii'ssU'  EvenUng  . 

Inn 

.Iiiliii  N.  Iii){h1Is.. 

.\ii(,'il  Di.lly 

.\ltiiii 

liarlmra  

.liiliuN    Iiigalls . . 


Ti>ii- 
nagn. 

A«r  at 

lllllK 

('out  l>rr 

ton  ilfllv 

ircil  Hi 



• 
Yenrt. 

X'iciorlia 

120 

h-1 

♦44.  M 

Wt 

12 

01.  H2 

02 

:i 

70.  ;)2 

114 

IT 

40. 79 

5.' 

() 

IM.  «.'! 

H)7 

11) 

55.  H8 

40 

(i 

oi.;io 

lU 

IS 

;);i.  07 

tli 

u 

94.70 

7(1 

10 

82.14 

»:i 

10 

28.  :i4 

ni 

11 

.'•il.OO 

lu 

27 

71.05 

84 

1 

42.  26 

107 

10 

.■.a.  7a 

HI 

12 

53.51 

II  I'd^t  iH'i'  tondclivoreilat  Victoria"  N  Imsc'il  on  iIh'hhIi'  of  tlir  vox.solal  San  Krancidco 
*iiii  llic  duty.  10  pill-  cent.  U(l<U'il  ami  $250,  tlic  iMulu'Ht  price  llxol  lor  brincin);  a  vi'mmuI 
iriiiii  SiUi  Fraucigcu  to  Victoria. 

''Iti'liiillt. 

Ill  coiitraHt  to  this  evidence  produced  on  tlie  part 
nf  tlic  [Inited  States  which  estahlished  nine  sales  of 
s(';iliii<>-  veissels  at  Victoria  in  18.S()  and  ISST,  and  six- 
tci'ii  at  8an  Francisco  in  the  same  year.s,  and  takt^n 
ill  connection  with  the  statement  of  counsel  on  behalf 
nf  (ireat  Hritain  as  to  the  value  of  "actual  sales"  as 
I'vidcnct}  of  market  value,  is  the  following"  list  of 
transfers  at  Victoria  proved  by  witne.sses  jn'oduced 
li\  (Jreat  Britain,  and  which  it  is  contended  are  of 
little,  if  any,  assistance  in  determining-  the  market 
value,  being  so  few  in  number,  and  their  dates  so 
ii'inote  to  the  time  when  the  seizures  occurred. 

1890. 

^f(l^/  Taylor  (oO  ton.s),  built  in  1875,  was  sold  atR.,  i05. 
Victoria  by  Warren  to  Munsie  for  about  $4,000. 

1893. 

Vrm  (()0  tons),  l)uilt  in  1888,  was  sold  at  Victoria R-,  m. 
tor  s7,442. 


u  s 


-18 


m 


X 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


lii|2JB     |25 

m  m 

^   til    12.0 


Ml  < 

ik 

11.25  1111.4   11.6 


/ 


Photographic 

Sciences 

Corporation 


23  WiST  MAIN  STRIIT 

WIBSTIt.N.Y.  USSO 

(716)  •72-4903 


6^ 


L 


;V 


(>■ 


274 


EVIDENCE VALUE    OF   VESSELS. 


R.,  141. 


R.,  105. 


!{.,  104. 


R.,  1.58. 
R.,  l;-)'!. 

R.,  104. 


R.,  754, 
47. 


R.,  1424, 
30. 


A)inie  I'L  IVmt  (82  tons),  built  in  1885,  was  sold 
at  Victoria  about  1893  (?)  for  !}?y,400. 

1894. 

Otto  (8fi  tons);  one-cjuarter  interest  was  bou<ilit  bv 
Munsie  at  tlie  rate  of  S5,r)0(). 

Besides  these  sales  at  Victoria,  Great  Britain  jno- 
duced  evidence  to  estal)Hsli  what  was  the  cost  of  ves- 
sels, ])urchased  in  Nova  Scotia,  when  delivered  at 
Victoria.  The  schooners  built  in  the  east  were  of  a 
su])erior  class  of  material  and  worknianshi])  to  those 
produced  in  the  s]iij)yards  of  the  Paciiic  Coast,  and 
were  with  but  one  exception  coni])aratively  new  ves- 
sels. It  is  therefore  contended  that  tlie  pnces  paid 
for  such  craft  are  no  criterion  of  the  market  value  of 
vessels  constructed  of  Doujilas  iir  by  less  experienced 
builders. 

The  list,  classified  by  years,  is  as  follows: 

1S8(!. 

Pathfinder  ((16  tons),  built  in  187J),  was  purchased 
in  Nova  Scotia  by  Munsie.  Her  cost,  delivered  at 
Victoria,  was  86, ")()(). 

1887. 

Aurora  (about  70  tons),  built  in  1881,  was  purchased 

in  Nova  Scotia  for  8(5, 600.     She  cost  81,200  to  hriiif; 

her  to  A'^ictoria,  niakino'  n  total  of  87,800.    It  a|)])ears, 

however,  she  had  an  accident  in  the  Straits  of  j\Iagel- 

lan,  which  undoubtedly  added  to  her  cost  at  Victoria, 

because  of  delay  an  1  repairs. 

Vira  (about  !I2  tons),  huilt  In  1885,  was  purchased 

in  Nova  Scotia  and  brou^iht  to  Mctoria  by  Munsie. 

Her  cost,  delivered  at  Mctoria,  was  about  89,000. 
line      Sapphirr  (123  tons),  built  in  1884,  was  purchased 

in  Nova  Scotia  and  brought  to  Victoria,  but  the  cost 

of  the  vessel  was  not  given, 
line      Triumph  (97  tons),  built  in  1887,  was  purchased  in 

Nova  Scotia  by  E.  C.  Baker  and  Daniel  McLean  for 


V.Mr. 


V.'iir. 


m: 


\m 


EVIDENCE — VALUE    OF    VESSELS. 


275 


s").(iOO:  delivered  at  Victoria  in  April,  1888,  she  cost 
lier  (.wiiers  ^8,250. 

1890. 

<)rn,i/  Ih'Ue  (80 tons),  built  in  1884,  was  imrchased"'!'^^- 
ill  Nova  Scotia.     Her  cost,  delivered  at  Victoria,  was 
SS,(I()0. 

(icHcra  (90  tons),  built  in  1885,  was  })urchased  inR,  15«^- 
Xovii  Scotia.     Her  cost,  delivered  at  Victoria,  was 
ss,70(). 

1891. 

Ihirti  Sicirard  (93  tons),  purchased  in  Nova  Scotia.  R-.  158. 
Her  cost,  delivered  at  Victoria,  was  !iS9,()39.2(). 

Kroin  tlie  foregoing-  list  of  sales  at  Victoria,  fur- 
iiislK'd  by  the  evidence  of  witnesses  sworn  on  behalf  of 
the  clMiniants,  and  of  the  list  of  schooners  brought 
troiii  Nova  Scotia  for  sealing'  purposes,  the  folhnving 
tiihlcs  liave  been  })re})ared,  showing  the  price  i)er  ton 
tor  such  vessels  in  tlie  Victoria  market: 


Vr;;r. 


Average  price  2)aid  per  Ion  for  reaseh  sold  at  I'ictoria 
Vessels. 


l-'.iii     Mai  V  Taylor... 

l-!i:i     V,.ni 

Annie  E.  raiiit. 
l-:i|    oit 


Age  at      f.„„,  .,„. 
Tonnnge.    time  of     ^°^^,}""' 
sale. 


50 
60 

82 


Tears.    , 

15  a  $80, 00 

5  124. 03 

8  114,63 

03.95 


a  About. 
■  Uirage  price  per  ton  at  Victoria  for  ressela  purchased  in  Xora  Scotia. 


\,:n: 

Veesels. 

Tonnnge. 

66 
70 
92 
123 
97 
80 
90 
03 

Age  At 
time  of 

pur- 
chMe. 

Years. 

7 
5 
2 
3 

H 

5 

Cost  per 
ton  an- 
il veretl  at 
\lctorla. 

I««7 

I'allilimler 

Anroni 

$98. 49 
rt  111.57 

\iva 

97.82 

Sai»|ililre 

18110 

I'liinnpli 

(icrau  Belle 

lii  lu'va 

1  lora  Siewerd  .. 

85.05 

100.  (10 

90.67 

97.19 

a  Accldfiit. 


276 


EVIDENCE — VALUE    OF  VESSELS. 


From  the  foregoing'  summarv  of  the  evidence  pre- 
sented l)y  both  parties  to  tliis  controversy,  tl»e  follow- 
ing- table  is  submitted  as  shovvino-  the  average  market 
price  i)er  ton  for  sealing  vessels  at  Victoria  in  the 
years  1886  and  1887,  as  established  by  actual  sales. 
The  table  contains  three  Nova  Sc»,tian  vessels,  whicji 
are  included  to  avoid  any  charge  of  unfairness,  al- 
though, as  already  stated,  these  schooners  were  fin- 
superior  to  those  seized,  both  in  material  and  con- 
struction. 

Price  per  ton  in  ISSO  and  1887  for  rexsvh  at  yictttria,  as  shown  hy  actual 
,  suhs. 


Y  var. 

VeiBels. 

0to3 
years  old. 

4  to  10 
years  old. 

11  to  IS 
years  old. 

16  years 
and  over. 

]88(t 

Dlai'.k  Oiaiiioiid   

$30  H 

Favourite  ..> 

38.97 

Kate   

30.00 

58. 'J  J 

1887 

30.50 

1880 

Addie  0.  llazultino 

$44.58 

(iolllcil  i  ifttl* 

$01.82 

Iriiiii 

7!t.;i2    

40.79 

Sun  tToHp            ....       .   ... 

9U.65 

1887 

IJavbiirji       ... 

$,"i.'>.  H« 
01.30 

City  '*f  San  Diego 

33.  OJ 

LilyL 

94.70 



1886 

82. 14 

liio               

26.  :n 

John  N.  liiffalls  

51.00 

1887 

Angel  Dolly 

71.05 

Alton 

jiarbora 

42.20 

53.73 

53.51 

1880 

Pat  litinder 

98.40 

1887 

Viva 

97.82 
85.05 

; 

Triiimph 

Average 

1 

i 

78.20 

70.30 

55.47 

39.73 

Note.— The  Aurora  i«  omitted  from  this  tabl^^  as  it  appears  from  the  evidence  that 
she  met  with  an  accident  in  the  Straits  of  Magellnii,  which,  as  already  stated,  iiniloubt. 
odly  increased  the  expenses  of  bringing;  the  vessel  from  Nova  Scotia. 

The  second  class  of  evidence,  relating  to  the  value 
of  vessels,  presented  to  the  Commissioners,  partakes 
of  the  character  of  expert  testimony,  and  is  substan- 
tially the  only  evidence  relied  upon  in  the  Argument 
on  behalf  of  Great  Britain  to  estnblisli  the  vali'p  ot 
the  seized  vessels.  The  ])romin«'nce  given  this  class 
of  evidence  by  Grent  Britain  demands  a  detailed  ex- 


tlic  yea 

VillllC,   J 

iiiitioii; 


This 


deuce  ])re- 
tl»e  f'ollow- 
ij»e  market 
:>ria  in  the 
dual  saks. 
sels,  wliicli 
lirness,  al- 
were  far 
and  coii- 

'lown  hy  actual 


1  to  IS 
Rrs  old. 

lf3  yeurs 
mm  OVIT. 

$.10.56 
38.97 
30  00 

56,3 
1)0.56 

$01.82 

40.711 

a;i.o7 

'si.'oo' 

26.  :U 

53.51 

55.47 

39.73 

tlie  oviilence  tint 
'  stated,  iiDdoubt' 


)  the  value 
s,  partakes 
is  substaii- 
Arg-uineiit 
e  value  of 
1  thin  class 
etailed  o.x- 


EVIDENCE — VALUE  OF  VESSELS. 

iiiuiiiiition  of  the<iiiaHticati«>ns,  coniiK'tencv,  antl  crodi- 
liilit\  ot"  each  witness  sworn  on  ;jelirtlt"  of  either  of  the 
liiiili  (•(intractin*''  ])arties, 

Tlic  wit'jesses  in'oduced  by  Great  Hritain  will  be 
first  discussed  in  the  order  of  inn)ortance  j^iven  them 
ill  the  Arji-ument  on  behalf  of  the  claimants. 

Walter  Walker,  termed  in  the  Arfrument  "shij)- 
\\ii<ilit  and  proprietor  of  shipyard,"  and  cite<l  as  to 
the  value  of  the  Cmoletia,  OHtraid,  Anna  Bed,;  (hace, 
(tiiil  Ihiljthin,  was  a  jounicfimun  ship  carpcHk'r.  It  does 
nut  appear  that  he  ever  built  a  sealing*  schooner  or 
worked  u{)on  one  in  course  of  construction,  nor  does 
it  ajipear  when  he  became  interested  in  "Trahey's 
sliijiyard,"  of  which  he  claimed  to  have  been  the  })ro- 
|)ri('tor;  but  in  1883  he  was  workinj^-  as  foreman  in 
ivpaivinji'  a  (lovernment  steamer  and  left  his  trade  in 
April,  1884,  to  become  measuring  surveyor  of  the 
jKirt  of  Victoria.  His  estimates  of  value  are  based 
on  what  it  would  cost  to  huild  vessels  in  Victoria  in 
the  years  188G  and  1887,  and  do  not  refer  to  market 
value,  as  is  shown  by  the  following  from  his  exami- 
nation : 

Q.  Vou  can  only  tell  wluitit  would  coat  to  build  a  schooner 
here  in  Victoria  where  they  did  not  have  the  ship  chandlery 
material,  and  where  they  would  have  to  pay  a  high  price  if 
tliey  (lid  get  it;  that  is  all  you  propose  to  tell? 

A.  That  is  all. 

Q.  When  you  testified  as  to  the  value  of  ships  in  1886  you 
were  not  very  familiar  with  vessels  that  were  sold  in  that 
year,  were  you,  or  familiar  with  their  prices  ? 

A.  No. 

This  witness  had  repaired  the  Favourite  after  1882, 
iiikI  was  therefore  fauiiliar  with  her  build  and  condi- 
tinii.  When  recpiested  to  place  a  value  upon  her 
repaired,  he  gave  as  his  opinion  that  she  was  worth 
^7.(100  or  S8,00().  The  vessel,  which  was  of  80  tons 
le^-ister,  was  actually  sold  in  1884  for  84,500,  and 
ii^iii in  transferred  in  1886  "just  as  she  came  from  sea" 


277 


l?r.  Arg.,  97, 
lino  35. 


R.,  174,   line 

52. 
R.,  175,    Hue 

15. 
H.,    181,  line 

40. 


R.,   181,  line 
40. 


R.,  185,  line 
40. 


R.,  175,  line 
10;  183,  line 
6. 


R.,  184,  line 
28. 

R.,  701,  line 

29 
R.,   409,  lino 

85. 


278 


EVIDENCE — VALUE    01'   VESSELS. 


R.,    185,  line 
18. 


R.,  109.  line 
67;8'J2,liin" 
50. 


R.,   836,  line 
53. 


R.,   980,  lino 
35. 


R.,  196,  line 
10. 

R.,197,liuo8. 


R.,  1015,  line 
18. 

R.,197,liue5. 

R.,  199,   line 
17. 


R.,  199,  lino 
67. 


for  S3, ()()().  Questioiieil  as  to  the  schooner  A'rf//-,  tlie 
witness  said  he  knew  her  and  showed  intimate  kiiowi- 
edj^e  »>f  lier  construction.  Wlien  asked,  "In  l.SSli, 
wlien  she  was  here,  wliat  was  slie  wortli  ?"  lie  replied: 
"I  should  think  she  was  worth  about  S(;,r,0()."  Tliis 
latter  vessel  was  of  (50  tons  reg-ister  and  was  trans- 
ferred in  1S8(!  for  ^1,800.  The  (jnestion  was  raised 
on  his  redirect  examination  whether  he  was  well  ac- 
(juainted  or  not  with  these  vessels;  but  it  a])])ears 
that  he  was  hcffcr  acquainted  with  them  than  with  tlic 
Jlton/toH,  of  which  his  valuation  is  relied  upon  in  the 
Argument  on  behalf  of  (ireat  Britain.  He  based  his 
valuation  of  the  (rrnce,  IMplirn,  and  T!'.  ]\  S.  Sai/iranl 
on  what  they  tvonld  cost  to  huihl,  and  on  the  fact  that 
they  would  not  have  dei)reciated  in  five  or  six  years 
after  bein<»-  launched. 

Orlando  Warner  is  cited  in  the  Arg-ument  on  behalf 
of  Great  liritain  as  to  the  value  of  six  vessels,  the 
Carolma,  Thornton^  Onward,  Anna  Beck,  Grace,  and 
DoJpli'uL  He  also  was  a  jonrneipnan  sJii})  carpenter 
and  was  for  four  years  interested  in  a  shipyard  in 
Victoria;  as  he  was  so  interested  in  1891,  he  was  but 
ix  journeymati  in  1880  and  1887.  His  experience  in 
building-  sealing  vessels  (consisted  in  working  as  a  jour- 
neyman on  the  IhJph'ni  in  1881,  and  in  1890 and  1891 
constructino-  under  contract  the  hulls  of  two  schooners. 
Between  the  years  1884  and  1888,  inclusive,  he  buih 
no  vessels.  He  bases  his  valuation  entirely  on  what 
it  would  cost  to  huihl  a  vessel.  In  regard  to  the  value 
of  the  CaroJena  he  testified: 

Q.  Now,  when  you  put  lier  price  at  |3,800  or  $4,000,  are 
you  thinking  of  what  it  would  cost  to  build  her? 
A.  That  is  my  idea;  yes,  sir. 
Q.  To  build  her  new? 
A.  Yos,  sir. 

Q.  And  you  base  your  estimate  on  that? 
A.  Yes, 

As  a  witness  upon  the  question  of  the  value  of  the 


EVIDP:NCE VALUE    OF    VESSELS. 


279 


B.,  1029,  line 
3St, 


lliwc,  Dolphin,  Anna  Heck,  and  W.  P.  Suywurd,  he 

testiticd: 

ii.  Your  estimate,  of  course,  as  usual,  is  based  upon  your  K-.  loic,  line 
estimate  of  cost?  ■*'^- 

A.  Vcs. 
(,).  Entirely? 
A.  Entirely. 

It  is  contended  that  the  testimony  of  this  witness 
tiin  ])()ssess  no  weiglit  in  determining  the  valne  of  the 
vessels  seized. 

(uMU'ge  W.  Cavin,  cited  in  the  Argument  on  belialf 
of  (heat  Britain  as  to  the  vaUie  of  tlie  Thornton,  Anna 
Vxrk,  Grace,  and  Dolphin,  was  n  journeijman  ship  car- 
jii'iifrr,  wlio  foHowed  his  trade  about  liaH'  the  time.  ^•' "*-^' *'°® 
His  experience  in  1886  appears  by  the  following  tes- 
timony: 

Q.  Did  you  own  any  vessels  in  1886? 

A.  'So. 

i).  Huy  any  part  of  one? 

A.  No. 

(i.  Do  you  know  of  any  sales  in  those  years? 

A.  No;  I  had  nothing  to  do  whatever  with  any  sales. 

It  is  needless  to  criticise  the  value  of  this  witness's 
testimony,  further  than  to  quote  his  actual  language 
in  icgard  to  the  Dolphin,  in  connection  with  the  evi- 
dence of  J.  D.  Warren,  the  agent  for  the  owner,  that  in 
1881  the  6rracc  (which  was  larg-er  than  the />o//:>/«w)  42.  ' 
(ost  him  to  build,  with  engines  complete,  S16,0()0: 

(l  Do  I  understand  that  you  put  a  value  of  $14,000  on  the  ^"^2!*^^^'  "°° 
hull  and  spars  of  the  Dolphin  f 

A.  Yes. 

<v>.  And  outside  of  that  she  would  have  to  be  rigged  and 
made  ready  for  sea  ? 

A.  Yes. 

i}.  And  you  think  it  would  cost  about  one-third  of  $14,0U0 
to  rijjf  her  to  get  ready  for  sea? 

A.  About  that,  I  think.  .      ^ 

Q.  That  would  make  about  $4,700  more? 

A.  Yes.      , 

().  So  that  the  Dolphin,  without  her  machinery,  would  be 
worth  $18,700? 


280 


KVIDENCE VALUE    OF    VESSELS. 


A.  Yes;  she  would  run  pretty  well  up  to  that,  I  tliiiik. 

Q.  And  .about  liow  i..i»cli  would  her  engines  and  boilers  bi- 
worth  ? 

A.  They  would  be  worth  )!<;j,(M>0  or  $4,000. 

if.  A  large  engine,  like  the  Dolphin''s,  would  be  worth  at 
least  $4,000  or  $5,000,  would  it  not? 

A.  I  don't  know;  that  ain't  f)  i)art  of  my  business;  lam 
not  an  engineer  or  machinist. 

*i.  But  that  would  cost  at  least  $4,000  or  $5,000,  you 
think? 

A.  It  is  pretty  hard  telling  in  Vi<rtoria  about  how  niucli 
she  would  cost  at  that  time. 

Q.  Give  us  your  idea.     You  said  *;{,0(M)  or  $4,000? 

A.  They  might  have  cost  that  and  might  have  cost  a  great 
deal  more. 

(-i.  They  would  at  least  cost  that? 

A.  Yes,  they  would  at  least  cost  that. 

Q.  So  that  would  make  thi'  Dolphin  worth  about  $22,000 
or  $23,000,  with  her  machinery  in  ? 

A.  Yes;  I  don't  think  she  would  cost  much  less  than  that 
at  that  time. 

"hu1>'.%.  '^^'  Hubert  J.  Cook,  cited  in  the  Argunieut  on  bclialf 
of  the  claiiiuints  as  to  the  value  of  tlie  Thornton, 
Onivard,  audAnna  Beck,  as  "a  shipwright  and  jjropri- 
etor  of  shipyards  for  luanv  years  at  Victoria"  and  "an 

R.,  IW>,   liue  •  1    1      •!  1       M        '     "  •    .  £•  1  •  1 

46.  experienced  builder,     was  })roprietor  ot  a  snij)yaia 

R.,  836,  line  prior  to  1883,  ill  wliich  year  '^]\u'pel  rented  it,  and 

^'  wlio  at  the  time  of  his  examination  was  working"  as  a 

R    8BS   1"    .h^ft'ticntumi.     During  the  sixteen  years  he  claims  to 

3.     '        have  been  engaged  in  building  he  never  constructed 

any  sealing  schooners,  but  he  calculates  the  value  of 

R.,  835,  line  a  vessel  in  1886  on  the  basis  of  what  it  would  cod  to 

huUd  one  at  that  time. 

The  ca])acity  of  the  shi})yard  managed  by  Cook 

R.,  831,  line  is  sliown  by  his  statement,  that  in  1878  it  took  liira 

^-  eleven  months  to  partially  rebuild  the  Thornton,  while 

Matthew  Turner  testified  that  in  his  yard  at  Sail 

„    ,„,..  ,.     Francisco  a  100-ton  vessel  usually  tooK  sixty  davs 

R.,  Ivl.i,  line        1      .1  1  1       .'  V 1  1         1  '  i 

35.  to  build  "ready  for  sea,     but  could  be  completed  at 

increased  expense  in  thirty  days.     Cook  was  cpies- 


EVIDENCE VALUE  OF  VESSELS. 


281 


timicd  us  to  nmvket  value  in  18H(i,  and  testitiod  as 

t'lillnWS: 

Q.  How  <lo  you  know  what  it  would  <;ost  in  1886?  i^.  ><•'>:<■  lino 

A.  Hecause  I  kuew  what  the  luice.s  were.  "• 

(,».  How  do  you  know  anything  about  the  market  value  of 

boats  in  188(»*' 
A.  So  far  as  that  goes  there  was  no  real  market  value. 
Q.  I  Jut  boats  were  transferred  from  one  person  to  another 

at  tliat  time? 
A.  Yes;  we  used  to  buy  some  vessels  from  San  Francisco, 

and  some  came  out  from  the  East. 

As  nine  sales  in  Victoria  dnvin<»'  IHSG  were  testified 
to  Id'tore  the  Hij^li  (Joinniission,  as  already  shown,  the 
iiicoinpetency  or  this  witness  is  apijarent.  lie  stated ^''.ig^'^*^'  ^"'® 
ill  his  examination  tluit  the  Tlionifoii  in  1877  was 
wnrlh  >sr),"200.  Hein<^  questioned  as  tt>  the  extent  of 
tlic  repairs  he  made  upon  the  vessel  in  that  year,  he 
ivj)lied: 

She  was  worth  more  when  I  was  done  with  her  than  sheK  >  .^'^i.  l'"® 
was  when  she  was  built  first.  -''■ 

Q.  Well,  then,  your  bill  would  represent  the  complete  value 
of  the  ship? 

A.  It  would  at  that  time. 

lie  was  further  asked: 

(}.  Mr.  Cook,  did  you  estimate  the  cost  of  repairing  theB.,9:i5,line9. 
Thornton  in  the  year  1877  at  $3,500! 
A.  Yes,  sir. 

It  is  unnecessary  to  further  review  the  evidence  of 
this  witness  or  to  discuss  his  competency  as  an  expert, 

Kichard  Bennett,  cited  in  the  Arg-ument  on  behalf 
(if  (Jrreat  Britain  as  to  the  value  of  the  Anna  Beck, 
(inu'c,  and  Dolphin,  was  a  journeyman  ship  carpenter,  K- 1038,  line 
wlio  stated  that  he  did  not  know  nuich  about  the 
vessels  since  1883.  His  testimony  in  the  case  of  the 
It'll jihin  and  Grace  is  in  relation  to  the  cost  ofbuildin(/R  ,  1037  line 
tik-iu.  ■      30. 

In  the  case  of  the  Anna  Beck,  the  following  appears 
in  his  examination: 

Q.  Did  you  have  anything  to  do  with  the  sale  of  schooners?  jj    joas  line 
A.  No.  17.     ' 


282 


EVIDENCE — VALUE    OF    VESSELS. 


if.  Kroin  iintiial  sales,  do  you  know  anything  abont  the 
value  of  the  fleet  of  sealing  schooners  here? 

A.  I  would  have  to  take  account  of  the  vessels  and  look 
over  thenj. 

if.  IJeing  a  shipbuilder,  do  you,  in  estimating  values,  largely 
give  your  own  idea  of  the  cost  of  tliem! 

A.  1  do. 

Q.  You  are  quite  positive  that  the  cost  was  cheaper  in  1881 
than  in  lS8Gf 

A.  1  am. 

i}.  The  cost  of  building  was  very  high  in  1880? 

A.  It  was. 

(^.  And  the  value  of  the  vessels  correspondingly  increased? 

A.  It  did. 

(}.  Do  you  know  anything  about  the  ditt'ereuce  in  the 
values  of  vessels  between  1881  and  1880? 

A.  No,  I  <lid  not  give  it  a  thought. 

Tlie  knowledge  and  experience  of  this  witness  are 
entirely  insiitticient  to  give  his  opinion  as  an  expert 
the  slightest  value. 

Alexander  Watson,  jr.,  cited  in  the  Argument  as 
to  the  value  of  the  Cnrolena  and  Onward,  was  a  jour- 
K.,  i«s,  Vmv,  ncyman  ship  carpenter,  wlu*  built  on  contract  the  hull 
of  one  sealinf]  vessel,  the  Minnie,  in  1881).     He  stated 
R.,  189,  liiK'that  he  knew  of  no  sales  of  schooners  in  1884,  1885, 
18H(),   or  1887.     His  ignorance  of  values  and  his  in- 
competency as  an  expert  are  shown  by  extracts  from 
his  examination: 
R.,  189,  Hue     Q.  How  do  you  know  wluat  the  Cnrolena  would  have  sold 
53.         for? 

A.  I  do  not  know  what  she  would  have  sold  for. 

Q.  How  do  you  know  how  much  she  was  worth  ? 

A.  I  gave  my  opinion  of  her  value. 

Q.  How  could  you  form  au  opinion  of  her  value  when  you 
don't  know  what  the  market  price  was? 

A.  I  could  tell  by  what  I  heard  of  vessels;  it  was  only 
hearsay,  of  course. 

Q.  You  can  state  what  she  cost  to  build  ? 

A.  Yes. 

Q.  That  is,  your  own  opinion? 

A.  Yes. 

Q.  You  do  not  know  of  a  single  sale  of  a  vessel  in  these 
years? 


EVIDENCE — VALUE   OF    VESSELS. 


283 


about  the 
8  ami  look 
les,  largely 

per  ill  1881 


increased? 
ice  in  the 


tiiess  are 
an  exj)ei*t 

Liinent  as 
IS  a  jour- 
t  the  hull 
ie  stated 
84,  1885, 
id  his  ill- 
acts  from 

liave  sold 


when  you 
was  only 


in  these 


A.  No;  there  might  have  been  suie    but  I  don't  know  any- 
thin;;'  about  them. 

lie  stati'd  that  lio  knew  wluit  it  would  have  cost  to 
liitilil  the  ('(itoh'HU  in  ISSG,  hut  upon  l)ein<''  asked 
\\ii;it  siu'h  cost  would  have  heen,  he  replied  that  he 
would  have  to  hnw  the  s])ecifications,  and  fliaf  he  (//V/'^-  •"<*'  '""e 
iKil  know  the  h'Nfftli,  hrcddfli,  aud  dr/tfli  of  hold  of  the 
CiirolriKl. 

Ill  his  examination  as  to  the  value  of  the  Onward,^-  sr.«,  line 
which  he  had  never  worked  on,  but  had  seen  in  the r.'.' 8.-.!t,  line 
liiiiltor  of  Victoria  in  IMS'),  he  stated  that  his  valu a- ,'''•.„   ,. 
tinii  was  hasedon  Ji  ealculaTuuiot  si2,)  per  reg-istereu    tw. 
toll  to  hiiild  a  mw  rcf^scl  of  find  rl<(s.s  in  1886;  and  on 
this  basis  he  valued  the  Oincdrd  at  from  84,325  to 
s5,()0(). 

His  testimony  discloses  the  incompetency  and  i«>Mio- 
liiiice  of  this  witness. 

S.  McC.  Smith,  cited  in  the  Arjyument  on  behalf  of 
(beat  IJritain  as  to  the  value  of  the  (imce  and  Dolphin^ 
wiis  for  a  number  of  years  a  master  sh'qmr'ifjhf,  work- 
in^'  at  his  trade  in  Victoria;  and  his  examination  dis- 
closed three  sealing-  vessels  U])oii  which  he  worked  in^^'^^i,  line 
tiijit  ca])acity;  but  his  experience,  in  which  he  noted 
the  cost  of  building",  was  confined  to  the  }ears  1890,  ^"^g^^'^'  "'^^ 
l.Sill,  and  1892.      When  questioned  as  to  the  Caro- 
Inid'.s  value,  he  stated  that  he  never  had  seen  lier,  but^.j^j^^^'  ''°® 
lie  'nnnifwed  that  she  would  be  worth  about  >*3,6()0  or 
83,700.     He  is  not  cited  in  the  Argument  in  the  case 
of  the  Carolena,  presumably  either  out  of  deference 
for  his  method  of  valuation  or  because  his  imagina- 
tion was  not  strong"  enough  to  bring  his  figures  as 
liigh  as  the  other  witnesses  sworn.     He  based  his  valu-  R-.  ^oio,  lino 
ation  of  the  Grace  and  Dolphin  on  what  it  would  cost 
to  Iniild  them  in  1886. 

It  is  contended  that  this  witness  has  not  been  shown 
(pialified  to  give  testimony  as  an  expert  for  the  years 
1886  and  1887. 

John  J.  Robinson,  cited  in  the  Argument  on  behalf R'  ^^^- 


111 


i 


2H4 


EVIDKNCK VALUE  OF  VESSKLS. 


IL,  150 

R.,  ma. 


K.,  155, 


R.,  156. 


of  (in-at  lii'itiiin  jis  to  tin*  value  of  tlid'  Caiolciiii,  Wiw 
i\  joiinnf/iiioit  sli'ij)  cnijtnitrr,  ('Ui|'loy«'(l  at  tlu*  \aril  of 
AikIh'w  Lain<;',  one  of  tin*  claiiiiants  lu-forc  tlic  Coin- 
missioii.  'riic  witness  stated  tliat  lie  never  Wuilt  a 
sealing'  schooner,  never  hou^lit  one,  and  never  sold 
one.  Knrtliennore,  the  Hi-eord  does  not  disclose  that 
he  everwoi-kcfl  n]ion  any  sealinj^' vessel  exceptini^'  tlu- 
Cnn>(r)i(i  at  the  time  when  she  was  lengthened,  in  1HH4. 
lM>.e  value  of  the  testimony  ^iiven  by  this  witness  is 
best  shown  by  "xtracts  from  his  examination. 

i).  Ill  the  cours'^  of  your  business  here  have  you  acijuired 
a  knowledge  of  tlie  value  of  vessels? 

A.  No,  1  t'ouid  not  say  that  I  have;  I  have  {ienenil  ideas 
all  round. 

Q.  Have  you  any  opinion  as  to  the  value  of  the  Carolnut 
at  that  time? 

A.  I  should  think  she  was  worth  between  $4,000  and 
$5,(K)0. 

Q.  Have  you  any  opinion  as  to  the  cost  of  building  vessels 
per  ton  in  Victoria  at  that  time  and  prior  to  that  time!f 

A.  Oh,  1  suppose  all  the  way  from  $150  up,  builder's 
measurement. 

*  *  •      .        •  •  •  « 

A.  I  have  never  built  any  schooners.    That  is  my  idea. 

Q.  After  you  had  completed  your  work  ou  the  Varolena, 
at  what  did  you  value  her  per  ton? 

A.  Oh,  I  suppose  about  $105. 

Q.  She  was  worth  then  more  than  it  would  cost  to  build  a 
new  vessel? 

A.  You  have  got  to  take  the  vessel  apart.  You  can  not 
take  her  apart  for  nothing. 

Q.  Then  that  vessel  that  has  been  cut  in  two,  and  has  been 
lengthened,  is  better  than  a  new  vessel? 

A.  No,  sir;  certainly  not.  It  takes  more  labor  to  do  it 
that  way;  she  is  worth  more  after  you  have  linished.  It 
takes  more  labor  in  proportion  to  do  that  work. 

Q.  Is  she  worth  more  than  a  new  vessel  of  that  length? 

A.  I  don't  say  she  would  be  worth  more  to  her  owner. 

Q.  Was  she  worth  more  on  the  market? 

A.  I  understood  she  was  worth  about  $5,000. 

The  witness  is,  from  his  own  evidence,  clearly 
incompetent  to  give  testimony  as  to  the  value  o(  any 
sealing  vessel. 


ation 


EVIDENCE — VALUE    OF    VESSELS. 


2H5 


van  I  of 

Idiilr  ii 
'Vcr  sold 
lose  tliiit 

ill  1HS4. 
itiicHH  is 

I  acquired 

ei-iil  ideas 

s  Carolimi 

t,000  and 

ng  vessels 
imef 
builder's 


ly  idea. 
Carolena, 


bo  build  a 

L  can  not 

has  been 

to  do  it 
shed.    It 

Bngth  ? 
vuer. 


clearly 
of  any 


ilcnrv  F.  SifwiTii,  cIUmI  in  tlie  hritish  Arjiuiiiuiit ''•• '•'•'• 
(III  Ixlialf  of  (Jrcat  ifritain  us  t<»  tiuf  valueof  tlm  Car- 
iiliiHi  and  Ada,  was  a  .swiliiiji'  captain  who  luul  notliin*^ 
to  do  with  tlic  scalin*^  l)iisinct»H  prior  to  September, 
18x7.  Mis  only  experience  as  to  the  valiu  of  vessels 
is  in  conneirtion  with  the  jjiirchase  of  three  scIiooium's 
ill  N'oxa  Scotia,  tlie  first  one  of  whic'  he  'troujiht  to 
\  ictoria  in  ISSH.  The  followiiio-  fr  .a  his  testimony 
,.]  I  I  irs  in  the  Arynmeiit  on  hehj'.lf  of  (ireut  Britain: »'    Air..  \>. 

'  '  "^  !'(>,  liiiulW, 

\.  I  aui  not  acquainted  with  the  Cmolenn. 

i).  lint  from  your  knowledge  of  vessels,  take  a  vessel  in 
ISS7.  suitable  for  sealing,  and  of  the  tonnage  of  'V2  tons  or 
llicrcabouts,  would  you  consitler  $4,00(1  a  high  or  low  valu- 
ation f 

A.  I  should  consider  that  a  very  rea.sonable  valuation, 
considering  the  e.vperienee  I  had  afterwards  iu  buying  ves- 
sels. I  will  say  that  in  1891  1  i)aid  $3,200  for  a  vessel  about 
thirty  years  old. 

To  which  shonld  he  added: 

().  VVhat  tonnage  was  she!  R..l(iO. 

A.  Forty. 

The  CarnJenn  was  built  the  same  year  as  the  vessel  Ai>i>.  h,  p.  I'it. 
lii    mentions,   and  was  27.ii(j   tons,  jicconlino-  to  the 
siiiNcy  made  of  the  vessel  in  1HS4. 

His  ionorance  of  the  Cnrofnid  and  of  market  value 
ill  1SS(!  divests  iiis  opinion  of  the  sliohtest  weioht. 

His  inexperience  in  purchasinji'  vessels  and  his 
ijiiiorance  of  the  Ada,  for  which  he  made  an  offer  in 
ISST,  .siiow  that  his  valuation  of  her  is  mere  specula- 
tion. 

-John  Sabiston,  cited  in  'he  Arofument  on  behalf  ofR.,  208,  line 
(ireat  Britain  as  to  the  value  of  the  darolena,  was  a^'*  "211  line 
Nanimo  pilot  who  never  built  a  s.'iling-  vessel,  but    i-^ 
liii.l  had  "boats"  built  in  1872  and  1893.     On  the    5.      ' 
cost  of  building-  in  1872  and  1893  he  bases  his  opin- 
ion c)f  what  it  would  cost  to  huild  a  vessel  like  then..  211,  lino 
C'lrolena  in  1SS4,  and  he  fixes  it  at  $5,0()().     That 
Ik'  is  utterly  incompetent  to  place  a  value  upon  any 
\('ssel  in  the  years  when  the  seizures  were  made,  or 


10. 


286 


EVIDENCE VALUE    OP   VESSELS. 


K. 


at  any  time  from  1880  to  1890,  is  evident  from  his 
testimony. 

AVilliam  Sleiglitliolnu?,  cited  as  to  the  value  of  tlie 
Thornton,  was  a  journei/niaH  ship  carpoifcr  who  liad 
,ji6i,  iine|,j.(.jj  emph)yed  on  the  vessel  in  making-  the  usual 
annual  re])air8.     He  had  never  been  a  contractor  or 
K.,  ften,  iiiie]ii{,ster  shipwright,  and  had  never  bought  or  sold  a 
R.,  965,  line  vessel.     Jlis  knowledge  of  the  cost  of  material  for 
""*•  ship  building  was  confined  to  the  })urchase  of  niasfs 

'?••""•'''  i'»ofor  one  vessel.     His   valuation  of  the   Onward  was 
K..  ii64,  line  based  upou  what  it  would  cost  to  huild  a  vessel  in  tlie 
-'-•  port  of  Victoria  in  1S86. 

The  evidence  of  such  an  inexperienced  man,  even 
so  far  as  the  cost  of  constructioii  is  concerned,  can  be 
of  no  value. 
\i.,  UK),  line      William  Turpel  worked  as  a  journeyman  shi})  cir- 
K.^'ieti   line  I '^"**^^'''  uutil  1.SS3.     Ill  that  year  he  rented  ways  and 
30.  used  them  imtil  188;'),  building  tiro  small  tufjhoats  in 

that  time.     He  then  again  became  a  journeyman,  and 
remained  so  until  18,S7,  when  he  bought  the  "Center 
Shi])yard,"and  continued  tliere  until  the  present  time, 
building  in  those  ten  years  t'.ro  sealing  schooners 
K.,  1(51),  lino  and  "quite  a   few  tugs."     In  18S9-90  he  built  the 
H.'^i({7   liuc'^*^^**^*^^"'^'**  ^f«!ff>clf<",  find  in   1890-91    the  Sadie  Tur- 
57.  2)''i'-     The  Avitness,  who  is  luidoubtedly  the  most  ex- 

perienced shipwright  swoni  <,»n  behalf  of  Great  Brit- 
K.,  811,  linoain,  was  called  in  the  cases  of  the  (^arolena,  Thornton. 
fine 27.    ''Dolphin,  Grncr,  Anna  Jieck,  and  W.  J*.  Sai/irard.     In 
regard    to    all    of  these,  excepting   the    Carolcna,  he 
stated  that  he  was  not  familiar  enough  with  the  ves- 
K.,  Kitt.         sels  to  fix  a  value  upon  them. 

In  the  case  of  the  Carolcna,  on  dire<'t  examination, 
he  gave  his  opinion  that  "if  slie  was  as  good  as  they 
say  she  was,"  he  should  think  she  would  have  been 
j{.^  171,  linc^vorth  about  >54,OO0.  On  cross-oxam'"ation  Turj)el 
was  asked:  ^'•From  your  personal  knoivli'dfje  of  the 
Carolcna  arc  i/on  competent  in  your  oivn  mind  to  place  a 
value  upon  licrf''  to  which  he  replied,  "  JS'^o." 


EVIDENCE — VALUE    OF   VESSELS, 


287 


from  his 

lie  of  the 
who  lijul 
lie  usual 
tractoi-  (»r 
•r  sold  a 
terinl  for 
of  iiiasfs 
'(ltd  was 
«el  in  the 

lan,  even 
d,  am  be 

ship  cMr- 
^vays  and 
(f/hnafs  in 
man,  and 
>  ''Center 
^ent  time, 
'cliooners 
built  the 
'tdie  Tiir- 
most  ex- 
•eat  ]^rit- 
Thornton, 
aril.     In 
o/ciHt,  he 

the  ves- 

m'nation, 
as  they 
,ve  been 
1  Turi)el 
?  of  the 
?  place  a 


lie 


The  witness  also  stated  that  the  cost  of  buihlin{>-  a^'  '^*''- 
vessel  in  18S6  and  1H87  was  from  Si  75  to  s-iOO  a  ton. 
On  the  same  ratio  the  cost  of  hnihling-  a  vessel  in  San 
Fniiicisco,  deductin<^'  tlie  duty  and  expense  of  delivery 
to  determine  the  eost  of  such  vessel  delivered  at  Vic- 
toria, w<mld  have  l)een  from  >>ir)0  to  8175  ))er  ton.  An  ''.;^i'"^^' '' 
examination  of  the  evidence  of  Matthew  Turner,  the 
San  Francisco  sliipbuilder  (which  is  later  reviewed), 
discloses  that  sncli  a  tigure  would  have  been  lar<>ely 
in  excess  of  the  actual  cost  in  188()  and  1887  at  the 
latter  ])ort.  This  statement  of  Turpel  shows  conclu- 
sively why  sealino-  schooners  were  not  beiu"-  built  at 
Victoiia  in  those  years,  and  demonstrates  that  the  cost 
of  huildinj;"  at  that  port  is  not  even  remotely  a  basis 
tor  calculatino-  what  would  have  been  the  c<Kst  to  the 
owners  of  re})lacin<»'  the  seized  vessels. 

Ivichard  Collister,  cited  in  the  Aro-ument  as  to  the 
value  of  the  Ada,  was  inspector  of  hulls  at  Victoria 
siniH'  1884,  ])reviousto  which  time  he  had  been  a  ship '^■.:,^^^-'  ''"" 
cai  penter.     In  1883  the  witness  had  worked  as  a  jour-  h.,  ihi»,  Huo 
iK'Unian  on  the  ])oIj)liin,  and  in  1887  had  surveyed  the    "  ' 
scliooner  Ada  for  the  underwriters  at  San  Francisco, 
althouo-h  his  official  duties  were  confined  to  the  ins})ec- 
tinii  of  vessels  usinf»'  steam.    In  his  cross-examination i^*. i^^i^^.  ii"o 

29 

tile  following  appears: 

().  Do  you  kuow  anything  about  what  the  cost  of  the  Ada  u..  ims,  iiuo 
was?  5«. 

A.  1  have  no  idea. 

().  And  in  fixing  the  value,  do  you  estimate  the  cost  to 
rebuild  her  at  Victoria? 

A.  I  estimated  her  at  what  she  would  sell  for  at  that  time 
in  \ictoria. 

Q.  You  are  iiuite  familiar  with  the  sales  of  other  vessels? 

A.  I  knew  vessels'  value  at  the  time. 

(}.  How  did  you  learn  that? 

A.  Because  they  were  in  great  demand. 

<i>.  Did  vou  know  of  the  buying  or  selling  of  any  vessels  in  i;..  vau,  line 

18S(i?  5. 

A.  I  did  not. 

<,>.  1887  or  1888? 

A.  I  knew  nothing  about  the  sale  of  vessels. 


288 


EVIDENCE VALUE    OF    VESSELS. 


K.,  216, 
60. 


K.,  21(i, 
52:l'17, 
4. 


R..  217, 
2L 


li.,  217, 
56. 


It  18  clear  from  his  evidence  that  his  valuation  was 
bavsetl  entirely  U]}on  wliat  it  would  cost  to  huihl  a  ves- 
sel in  1887,  and  as  his  exi)erience  in  sliip  buildiuo-, 
even  as  a  journey nian,  was  ])revious  to  1884,  his  tes- 
timony is  valueless  for  the  purpose  for  which  it  was 
produced. 
^""^  John  Clark  was  n  jonrHcifuian  shipirrif/hf,  who  came 
to  Victoria  about  1884,  and  who,  since  1888,  has  l)een 
iiii.sa  contractor  on  his  own  account,  «lurin*»'  which  time, 
'""'  in  the  winter  of  1891-il2,  he  l)uilt  two  sealino-  schoon- 
ers of  (ID  tons  each  for  !§8,7r)()  and  alxmt  89,()()(), 
respectively.  His  evidence  is  produced  for  tlie  pur- 
pone  of  showinji"  that  the  cost  ofhiiil(linff  ressels  had 
decreased  nt  Victoria  from  1880  to  ]8})2.  Althouoh 
the  c«>st  of  building-  at  \'ictoria  in  188(!  has  little 
bearing  ujxm  the  tpiestion  of  market  value,  and  the 
cost  in  1892  is  still  m«n'e  immaterial,  the  witness 
establishes  his  own  incom])etencv  by  his  testimony: 

lint"     Q.  Well,  there  was  no  building  here  iu  1880  of  sealing 
ships,  was  there! 

A.  No,  sir. 

Q.  Nor  in  1885? 

A.  No,  sir. 

Q.  Nor  in  1884? 

A.  I  don't  think  so. 

Q.  Nor  in  1887  ? 

A.  Not  that  I  know  of. 
liiii'     Q'  You  can  not  tell  anything  about  the  cost  of  a  ship  iu 
1884,  1885,  1880,  and  1887? 

A.  Oh,  I  had  nothing  to  do  with  them  at  that  time. 

Kedirect  examination : 

Q.  In  the  answer  which  you  have  given  to  the  last  ques- 
tion, have  you  in  mind  sealing  vessels  or  vessels  of  all  sorts! 

A.  I  merely  answered  the  question  that  I  had  nothing  to 
do  with  sealing  vessels  at  that  time.    I  was  repairing. 

Tlie  only  value  of  the  testimony  of  this  witness, 
is  to  show  that  a  Jotirncipnart  shiptvriffhf  is  incompetent 
tofjivc  expert  testimonji  as  to  values,  and  that  one  enffaf/ed 
in  repair  work  had  little  or  no  knoivledfie  of  the  cost  of 
Imildinfi  a  vessel.      .    -         ,  . 


EVIDENCE VALUE    OF    VESSELS. 


289 


Siiiiiuol  Sea,  in  the  Argument  oii  belialf  of  Great 
liritiiiii,  termed  "a  sliij)buil(lei"  of  larjie  and  long- 
experience,  and  familiar  with  the  Onirdid,^^  \va«  a 
sliip  ((irjH'Hfrr,  who  built  two  schooners,  "such  as  are 
used  tor  sealing',"  in  h'^UH  <I)kI  ISO'S,  and  who  last  built 
;i  vessel  in  1S7;J.  He  was  sworn  on  behalf  of  Great 
iiritain  as  to  the  value  of  the  Oi/irard  in  1SS6,  on 
wliicli  he  did  souie  repair  work  in  1878  and  18<S(). 
The  knowledge  he  possessed  (tf  the  ()i/ir((nl  outside 
(if  the  ((uestion  of  his  g-eneral  experience  is  shown 
h\  the  folhnvinji'  testimon\': 

Q,  Have  you  seen  the  Onward  since  yon  worked  on  her? 
A.  Ves,  I  have  seen   lier  when  she  used  to  come  into 
liiirbor. 
().  Have  you  been  upon  her? 
A.  Yes. 

i).  Have  you  seen  lier  since  1880? 
A.  I  can  not  say  1  have  seen  her  since  188(>;  I  might. 
(),  Are  you  positive  you  saw  her  between  1880  and  1880? 
A.  I  think  1  liave. 
().  Well,  are  yim  positive? 

A.  1  can  not  exactlj'  swear,  but  I  am  almost  sure. 
().  Are  you  about  as  sure  that  you  saw  her  since  1880? 
A.  Yes. 

His  incompetency  is  aj)parent. 

-lames  (iaudin,  sworn  in  relation  to  the  condition 
iind  value  of  the  Ada,  was  the  master  of  the  vessel 
niid  an  alleged  personal  claimant  before  the  Oonnnis- 
siiui.  He  is  only  cited  in  the  Argument  as  to  his 
still eiiient  that  the  Ada  was  the  best  sealing  schooner 
ill  the  harbor  of  Victoria  hi  that  year.  His  opinion 
iis  to  her  value  does  not  ivj)i)ear  to  be  relied  u})on. 
Xt»  iittempt  was  made  to  (p'alify  him  as  an  ex])ert  on 
the  value  of  vessels,  and  his  evidence  discloses  he  had 
no  knowledge  on  which  to  base  an  opinion.  As  this 
cniise  on  the  Ada  was  his  iirst  and  only  experience 
w  ith  sealing  craft,  his  statement  as  to  the  su})eriority 
(if  rile  vessel  possesses  no  weight  as  evidence.  He  is 
<leiirly  incompetent  to  give  any  testimony  as  to  value. 
B  s 19 


Hr.  Arg.,  105, 
liuo  5. 


K.,  S5(i,   line 
15. 

II.,   H56,  line 
68. 

K.,   857,  line 
39. 


H.,  857,  liuo 
4t». 


Dr.    Arg.,    p. 

127,  line  1 
R.,  1213,  line 

34. 


290  EVIDENCE VALUE    OP    VESSELS. 

John  Irving',  a  witness,  who  hud  been  enga«:>wl  in 
bnying-  and  selUng-  vessels  at  Victoria  since  1874,  was 
sworn  in  the  case  of  the  llioniton,  but  his  opinion  as 
to  what  it  wouhl  cost  to  hnild  such  a  vessel  in  18.S(!  Is 
not  referred  to  in  the  Argument  on  behalf  of  Great 
Britain.  His  ideas  are  so  exag'g'erated,  and  his  in;'ii<)- 
rance  of  the  vessel  so  evident,  that  his  opinion  is  of  no 
value. 

The  four  remaining-  witnesses  upon  the  value  of 
vessels,  sworn  on  behalf  of  claimants,  and  cited  in  the 
Argument  on  behalf  of  Great  ]3ritain,  are  J.  D.  War- 
ren, one  of  the  })ersonal  claimants  and  the  agent  of 
Thomas  H.  Coo})er,  the  larg^est  claimant  befoiv  tliis 
High  Connnission;  William  Munsie,  Charles  Sin-ing, 
and  J.  J.  Gray,  tin-ee  of  the  principal  claimai/-  (who 
for  themselves  or  others  represent  claims,  ^  nch,  as 
submitted  in  the  Argument,  ag-gregate  over  Sf;  ),000). 
The  evidence  of  these  witnesses,  who  })ossess  a  com- 
mon interest  in  enhancing'  the  value  of  sealing  vessels 
at  Victoria,  and  especially  the  schooners  seized,  must 
be  received  with  the  utmost  caution.  That  all  of 
them  possess  a  certain  amount  of  exjjerience  as  t<»  tlie 
value  of  vessels  is  uncpiestioned,  but  that  they  did, 
under  the  circumstances,  and  in  view  of  the  douht^'"^ 
credibility  of  the  three  first  mentioned  (as  disclosed 
l)y  portions  of  their  testinumy),  give  a  fair,  unbiased 
o})inion  of  the  value  of  the  vessels,  as  to  which  they 
were  examined,  is  not  probable. 

In  the  report  of  the  committee  appointed  l)v  tiie 
board  of  trade,  which  was  so  relied  upon  by  (ireat 
Britain  in  the  Geneva  Arbitration,  the  followin*;' 
observations  ap[)ear,  and  are  (pioted  in  the  counter 
case  of  (ireat  Britain: 

Geneva  Aibi-  It  will  be  at  once  admitted  by  those  who  are  at  all  familiar 
tration,  with  the  practice  of  the  courts  in  maritime  cases  that  it  is 
CO  u  11 1  e  r  j„jpy4^j,jj)]g  ^„  place  much  reliance  on  the  opinion  or  evidence 
Great" ih'i't-'^t  shipowners  or  merchants  as  to  the  value  of  property, 
aiu,  p.  i:n.  which  they  are  seeking  to  recover.    Shipowners  are  in  tlie 


EVIDENCE VALUE    OF    VESSELS. 


291 


liahir  of  founding  their  estimate  not  on  what  would  be  the 
iimrkct  price  of  the  vessel  at  the  time  of  her  loss,  but  on 
the  original  cost  price,  and  often  tfike  into  account  the 
aiiionnts  which  they  have  expended  at  different  times  with- 
out any  proper  deduction  for  the  wear  and  tear  and  damage 
wliicli  has  been  sustained. 

These  observations  iV})])ly  with  e(jual  force  to  tlie 
(iliinioiis  and  evidence  of  these  three  claimants  and 
flic  jiuent,  Warren,  wlio  are  relied  upon  in  estimating- 
the  value  of  the  vessels  seized. 

It  is  also  to  be  noted  that  William  Munsie  is  not 
iall('(l  as  a  witness  on  value  in  the  case  of  an}-  vessels 
liiit  his  own;   that  Charles  8i)rin<r  stated  that  the  0//-R-.  890,  lino 
mini  was  valued  in  the  sale  of  the  firm  property  of 
W.  Sprino-  &  Co.  at  82,200  and  the  Kate  at  82,800; 
1111(1  that  the  latter  vessel  was  sold  in  1S8(),  at  the  timeR.,  892,  line 
of  the  dissolution  of  the  ])artnership  of  C.  S[)rin<i,-  &    ^^• 
Co.,  for  81,800,  while  he  claimed  the  value  of  the 
tonnerwas  in  the  same  year  84,000,  modifyin<i',  how- ,.    „„„  ,. 

1  .  1         .         1         "      .  /,         '  .  1      .    "^      r'        ,      H.,  863,  line 

ever,  Ins  valuation  by  saying,  "considering  that  slie  54. 
was  worth  every  bit  of  that  to  me  at  that  sjiecial  time;" 
1111(1  that  James  D.  Warren  testified  that  the  five  ves- 
sels for  which  his  principal  makes  claim  were  offered  ^'^g^^^^' ^'"'^ 
till"  sale  at  public  auction  in  the  tall  of  1885  and  would 
IK  it  liring-  the  face  of  the  mortgages,  which  are  much 
less  than  the  amounts  claimed  as  the  value  of  the  ves- 
sels by  Warren,  who  had  charge  of  the  Coojier  claims. 

Having  reviewed  the  (pialifications  and  testimony 
(it  the  witnesses  sworn  on  behalf  of  the  claimants,  as 
experts,  it  is  jn'oposed  to  discuss  those  who  were  sworn  '  . 

1)\  the  United  States. 

Alexander  McLean,  i   Nova  Scotian  by  birth  and  R.,  429,  lino 

tVoiii  boyhood  eiiifay^ed  in  seafariiiff  on  the  Atlantic 

(■(•ast,  came  to  ^''ictoria  iir  the  vear  1880,  and  was  f(U* 

.  •!•         i."  ii     i      '    ^  •       I'ir  i  1      R-.  400,   lino 

two  years  saihng  iroiri  tliat  port  m  (hiterent  vessels,     30. 

•  lining  which  time  he  was  mate  of  the  Government 

steamer  c(^nnected   with  the  dei)artment  of   marine  „    ,„„   ,. 

,  ,.  1      .  TT     1  1  •  •  •  T       •    R.,  400,  lino 

Jiiel  lishenes.     He  ijegan  Ins  experience  in  sealing  in    58. 


292 


EVIDENCE VALUE    OF    VESSELS. 


1S(S2,  as  navigator  of  the  scliooiier  San  1)ic<)<r,  since  I  I'liss 


tlieii  lie  lias  been  master  of  a  sealiii<>"  vessel,  exec 


th 


iiii:'  111  tlie  \ear 


18.S3, 
g-ator  on  the  San  Dief/o. 


wlien  lie  ayani  sai 


led 


pt- 


[is  iiavi- 


lle  became  a  member,  in  1S,S4,  of  the  linn  of  0. 
►Spring:'  &  Co.,  which  was  engaoed  in  tra(Iin<.>'  on  tiic 
west  coast  of  Vaiuouver  Island,  and  which  also  owned 
several  sealing-  vessels,  retaining-  his  connection  with 

1{.^^419,  iiiiot],j,t  th-m  nntil  its  dissolntion  in  December,  1886.  He 
testified  that  it  had  been  a  jiart  of  his  bnsiness  to  keep 
posted  as  to  the  sales  and  transfers  of  sealing-  vessels 
on  the  Pacific  Coast,  and  showed  his  familiarity  with 
the  market  at  Mctoria  l>y  testifying  as  to  the  num- 
ber of  sales  which  occnrred  in  188()  to  his  personal 
knowledge,  and  which  have  already  l)een  reviewed. 

K.,  404,  405,  His  familiarity  with  the  sealing  vessels  which  were  at 
the  [)orts  of  N'ictoriu  and  San  Francisco  in  the  years 
l.S8r),  188f),  and  1887,  is  shown  l)y  an  examination  of 
his  testiiiKHiy,  in  which  he  gave  the  tonnage  of  the 
vessels  and  the  \'ears  in  wliich  thev  were  engaged  in 

K->  159,  line  sealing.  Besides  his  experience  in  Vict<n'ia,  Captain 
McLean  was  emjjloyed  l)y  [>ros))ective  })urcliasers  to 
inspect  vessels  whicdi  were  offered  for  sale  at  San 
Francisco. 

E.,  2G5,  line  The  witness  Ih-agg  stated  that  Cai)t.  Alexander 
McLean  and  his  brother  wen*  the  two  most  experi- 
enced men  in  the  sealing  bnsiness  at  Victoria  in 
1886,  and  E.  C.  Baker,  a  claimant  before  the  Com- 

1?.,  1420,  liue mission,  said  that  Daniel  McLean  "and  Alexander 
^^'  McLean  at  that  time  (1889)  and  })revionsly  were  con- 

sidered the  men  best  posted  in  that  business."     Every 

K.  701  line  effort  was  made  on  the  part  of  the  claimants  to  shake 
20;  7  01,  Captain  ^McLean's  testimony  by  rigid  cross-examiiia- 
soVifiiefhni,  and  to  destroy  its  effect  by  rebutting  evidence, 
?.*;   '^'j?'but  in  no  single  instance  do  we  find,  in  an  examina- 

1 1  11  G      1  5  '  ~  ' 

1305,  linotion  of  the  entire  Record,  that  the  attempts  were  suc- 
cessful; in  fact,  in  many  instances  where  witnesses 
were  sworn  for  the  purjjose  of  contradicting  hiui) 


54. 


EVIDENCE VALUE    OF    VESSELS. 


293 


It'ffo;  since 
el,  e.\c('i)t- 
^<l  as  iiavi- 


rinii  of  r, 
Hji'  on  tii(. 
so  owned 
ction  with 
<SHG.     Hi- 
ss to  keep 
ino'  vessels 
iarity  witli 
>  tlie  iiiini- 
s  })ersoii;il 
reviewed, 
eh  were  Jit 
tlie  years 
nination  dt' 
fig-e  of  tlic 
iiiji'aged  ill 
a,  Captain 
•chasers  t(i 
lie  at  San 

Alexander 
)st  experi- 
'^ictoria  in 
the  Coin- 
Alexander 
were  con- 
."     P^very 
s  to  shake 
-examina- 
evidence, 
exaniina- 
were  suc- 
witnesses 
ting-  him, 


iioss-cxamination  brought  out  a  full  corrolxn-ation  of 
rlic  testimony  which  he  gave.  It  is  to  ])e  noted  that 
(';il)tiiiii  McLean  was  part  (nvner  of  the  Onward  wwA 
Fdroiirifc,  two  vessels  for  whicdi  (daims  an*  made 
het'ore  the  High  Commission.  It  is  asserted  hy  the 
liiitcil  States  that  this  witness  is  shown  by  his  own 
tvidciice,  and  by  the  evidence  of  every  witness  who 
wiis  sworn  for  the  ])urpose  of  reliutting*  his  testimony, 
u>  ]i((ssess  more  ex))erieiiee  and  (jualificatious  to  be 
an  expert  as  to  the  value  of  vessels  at  Victoria  in  1S8G 
and  1SS7  than  any  witness  which  appeared  l)efore 
rlie  Ctdiunissioners. 

diaries  K.  Raynor,  who  commenced  his  ex])erience 
in  sailing-  from  Pacific  [)orts  in  the  year  LSTl,  and 
who  became  master  of  a  vessel  in  the  year  IHlfy  and 
of  a  sealing-  vessel  in  the  year  188<),  showed  by  his 
testimony  familiarity  with  the  sealing-  fleet  at  8an 
Francisco  and  knowledge  of  the  market  price  of  ves- 
sels in  that  ])ort.  His  entire  ex})erience  as  to  the 
market  for  sealing-  craft  is  ccmfined  to  the  j)orts  of  San 
Francisco  and  Seattle,  and  his  testimony  in  relation 
t(i  the  valuation  of  vessels  is  based  upon  tliat  experi- 
ence. In  1<S<S7  he  lual  charg-e  of  the  construction  of 
the  AHic  I.  Alf/cr  at  Seattle,  purchasing-  the  material 
and  superintending-  the  work.  In  IS-St)  he  inspected 
the  Ada  on  behalf  of  James  C.  Nixon,  who  bought 
the  vessel  under  his  advice  when  she  was  sold  at  Port 
Townsend.  In  188(1  Captain  Raynor  was  seized  on 
tlu'  Sail  Dief/o  and  taken  to  Unalaska  and  Sitka.  He 
was  ag-ain  seized  on  the  Allie  I.  Alf/er  in  1887  and 
taken  to  the  same  ports.  His  testimony  as  to  the 
value  of  the  vessels  seized  in  both  these  years  is  of 
peculiar  importance  in  that  he  exaimned  them  after 
their  seizure,  and  could  testify  particularly  as  to 
their  condition.  That  his  valuation  of  these  vessels 
is  based  entirely  on  experience  in  American  markets 
dees  not  deprive  it  of  the  weig-lit  to  which  it  is  enti- 
tled, as  it  is  merely  a  question  of  addition  of  the 


R.,  890,  lino 
30. 


R.,  402,   line 


R.,  4S«,  line 
32;503,lino 
lU. 


R.,  492,  line 
51. 


R.,  1249,  line 

33. 
R.,  494,  line 

10. 

R,,  1247,  Hue 
44. 


294 


EVIDENCE — VALUE  OF  VESSELS. 


R.,  .108, 

(i3. 
li.,  46!), 

3. 


E.,  470, 
18. 

E.,  4G!», 

17. 
K.,  479, 

40. 

U.,  4G9, 

21. 
R.,  478, 

53. 
E.,  469, 

50. 


R.,  470, 
27. 


R.,  477, 
Co. 


E.,  530, 
30. 


custom  duties  niul  cost  of  delivery  in  order  to  reach 
a  i)ro})er  valuation  in  the  i)ort  or  ^'i('toria. 

A.  11  Alexander,  who  since    ISSS   had  been  em- 
ployed by  the  United  States  Fish  Comnii.ssion  on  the 
''"•^  Pacific  Coast,  and  previous  to  which  time  had  resided 
line  at  (ihau-ester,  Mass.,  since  the  year  1S64,  was  sworn 
on  behalf  of  the  Tnited  States  in  relation  to  the  value 
of  the  ('(irolci/d,  which  he  had  seen  on  the  beach  at 
liiieUnalaskn   in  the  sunnner  of  LSHH.     ^Ir.  xMexander 
durinji'  his  residence  at  Gloucester  had  been  enga^ied 
ii««in  the  fisheries,  in   saihnakin<i\  and   in  assistint>-  his 
liiiefiither,  who  was  a  shipbuilder  of  (Jloucester.      Me  tes- 
tified that  he  knew   of  the   cost  of  construction  of 
line  vessels  at  that    i)ort,  and  on  comino-  to  the  Paeitic 
liiicC'o'i^^  in  1S8S  he  exann'ned  the  fishin<>'  vessels  there 
,.     emi)lo\ed  (which  are  similar  to  those  used  in  seal- 

liiic 

inji),  their  ri<i<iin<i'  and  construction,  makinj>"  notes  at 
the  time  for  general  comparison  with  the  vessels  on 
the  North  Atlantic;  that  his  investigations  covered  the 
ag^e,  g'eneral  condition,  rig-,  material,  and  cost  of  fi.sh- 
ing-  and  sealing-  craft,  and  that  his  reasons  for  such 
examination  were  his  own  interest  in  such  matters 
and  the  fact  that  he  mig'ht  l)e. called  upon  to  g'ive 
information  upon  this  subject  to  the  Fish  (Ntmmission. 
He  examined  the  vessel  as  to  which  he  testified  with 
^  care,  and  detailed  her  construction  and  condition  at 
that  time. 

line  From  his  ex})erience,  which  was  fully  brought  out 
in  his  cross-examinati(»n,  it  is  plain  that  the  witness 
was  competent  to  give  testimony  as  to  the  value  of 
the  Caroloia. 

li"e  K.  P.  iMiner  was  sworn  as  a  witness  on  behalf  of 
the  Fnited  States  as  to  the  value  of  the  Carolma. 
He  had  l)een  engag-ed  since  187;")  upon  fishing"  and 
hunting'  vessels,  and  had  sailed  from  the  ports  of  San 


E.,   529,  line 
55.  ^ 

E.,  529,  line  Francisco,  Yokohama,  Victoria,  and  Seattle.     InlS85 

68. 


E.,   529, 
62. 


liue 


he  became  master  of  the  Ih-iti.sh  sclu)oner  Penchqw^ 
and  since  that  time  up  to  1895  had  been  a  master  of 


EVIDENCE VALUE    OF    VESSELS. 


295 


sf;ilni;i'  vcjsso 


Is.      lie  stated  tliat  lie  knew  every  vessel  K.^  530,  lino 
rliiit  was  en<i"}i<i-e(l  in  sealinj''  in  ISSd  and  IS^iT,  and 
rliiit  rwo-tliirds  of  tlieni  were  orijiinally  V)iiilt  in  San 
Fniiiciseo.     That  lie  was  familiar  with  the  market  at '^"i,.,"'^"'  ^'"® 
Sail  I'rancisco  is  shown  bv  his  testimony,  and  that  in  K-  530,  line 


liiviiii;-  an  o[)inion  as  to  the  valne  of  the  Carohna  \\("r,,  555,  line 
was  uiiided   chiefly   l»y    his    knowledj^e   of   market  „i'^v„„   ,. 

1  1  "     tt'  •<•     1      1  •         .1      l^"   537,   line 

values  at  that  port.     He  testined  also  concernino' the    50. 

huililiiiji'  of  vessels  in  (•alifornia,  and  showed  an  inti- ^^{g''"'^^'  ^^^^ 

mate  knowledf^'e  of  their  construction,  material,  andR..  536,  line 

38. 

(■(ist. 

In  uiviiif];'  evidence  as  to  the  value  of  a  vessel  on 
the  market  in  188f>  and  1887,  the  opinion  of  Cajitain 
Miner  is  of  a  special  importance  because  of  his  evi- 
dent familianty  and  long-  exiierieiice  with  vessels  of 
the  class  under  consideration,  and  because  of  the 
clearness  with  wdiich  he  showed  ujion  what  g-rounds  he  j^    53,^   j^^^ 
l)ase(l  his  statements.     His  testimony  in  reji'ard  to  the    40. 
Ciinilriia  rested  upon  an  examination  which  he  made     '''   '  ^°*  ' 
nt'  lier  in  1 889  at  Uiialaska.     He  described  her  model, 
material,  and  construction,  and  explained  fully  how 
she  (litl'ered  from  marketable  yessels  in  188G. 

It  ajipears  from  the  fore<jfoin}^  review  that  21  wit- 
nesses were  sworn  on  behalf  of  Great  Britain  as  to 
the  value  of  the  vessels  seized.  One  of  these  was  a 
master  shipwright,  one  the  niana<>er  of  a  steamship 
(iiinpany,  one  a  pilot,  and  ten  jotn net/men  ship  ccirpoi- 
fi'i's.  These  thirteen  witnesses  all  testified  as  to 
values  upon  the  basis  of  what  it  would  cost  to  huUit 
vessels  at  Victoria  in  1886  and  1887.  The  remaiii- 
iiijH  witnesses  are  a  sealing-  captain,  who  had  no  ex- 
Iterience  in  the  business  prior  to  September,  1887; 
an  inspector  of  hulls  of  steam  vessels  at  Victoria,  the 
a^cnt  of  the  largest  claimant;  three  of  the  claimants 
before  the  Commission;  and  an  alleged  claimant. 
These  seven  testified  as  to  the  value  of  vessels  in 
t]i(is(i  years.  The  remaining  witness  is  a  ship- 
hnilder  (William  Turpel),  and  the  most  experienced 


1^ 


296 


EVIDENCE — VALUE    OF    VESSELS. 


R.,  167. 
R.,  168. 


of  tlu*  witnesses  sworn  on  V)elmlf  of  Great  IWtaiii, 
hut  lie  fjiils  to  place  a  value  on  any  vessel  from  liis 
own  knowled^^e. 

The  witnesses  sworn  on  hehalf  of  the  United  Statos 
are  four,  three  of  them  the  most  experience*]  sealiiiij 
captains  on  the  Pacific  (Joast,  who  fioin  their  ('(nn- 
prehensive  knowle(l<>e  of  the  sealing-  husiness  were 
fully  competent  to  fix  a  value  U})on  the  schooners 
seized.     I'lie  fourth  witness  was  an  employee  of  the 


United  States  Fish  V 


ho  had  heenfaniili 


nussioi 
witn  tne  <'lass  ot  vessels  u.sed  m  seMMn<>'  trom  Dov- 
hood,  and  with  those  on  the  Pacific  for  the  j)ast  ten 
years.  All  of  these  witnesses  iiive  testimony  as  to 
tlie  marhet  vnliic  of  the  seized  vessels 

The  third  class  of  evidence  suhmitted  to  the  Com- 
nn'ssioners,  but  which  can  only  be  relied  Ujxm  in 
case  it  is  deemed  a  market  price  has  not  been  jn'oved, 
is  the  cost  of  constructin<>-  yessels  of  a  similar  class. 
It  is  apparent,  from  a  review  of  the  snimnarized  evi- 
dence of  witnesses  sworn  on  behalf  of  the  claimants 
as  experts,  that  from  the  year  18S3  to  18H!),  inclusive, 
there  were  no  vessels  built  at  Victoria. 

The  only  evidence  which  was  submitted  under  this 
head  on  tlie  part  of  the  claimants,  excepting-  in  the 
cases  of  seized  vessels,  related  to  the  years  1890  and 
1S!)1,  when  it  appears  that  increased  facilities  for  tlie 
transportation  of  the  necessary  materials  from  the  East 
had  made  it  possible  to  build  vessels  at  Victoria  in 
competition  with  the  lar<;^e  shi})yards  of  San  Francisco. 
The  vessels  built  at  Victoria 'in  18!)0  and  1801,  of 
which  evidence  was  g-iven,  were  the  foUowinj^: 

1890. 

May  Belk  (57  tons)  was  built  by  William  Turpel 
for  80,500. 

Sadie  Turpcl  (5G  tons)  was  built  by  the  same  man 
for  $10,500. 


EVIDKNCK VALUE    OP    VESSELS. 


21)7 


jit  Britain, 
|1  from  his 

ti'(]  Stiitw 
■<1  scaliii"' 
leir  coiii- 

IK'SS    \V (>]•(. 

scIkkukts 
t'o  of  the 
11  familiar 
Tom  l)ov- 
i'  past  ten 
loiiy  as  to 

tlie  Coni- 
i  upon  ill 
;^n  j)rove(l, 
lilar  class. 
arize<l  evi- 
claimants 
inclusive, 

under  this 
ing-  in  the 

1890  and 
ies  for  the 
n  tlie  East 
^ictoria  in 
[^^rancisco. 

1891,  of 
ng-: 


Ti  Turpel 
ame  man 


I)i(iH(i  {'u^  to  ;')(!  tons)  was  built  and  launclu'd  in  u.^  I'.'T,  line 
this  year.     Her  hull,  s]»ars,  etc.,  without  ri<;oiiio-,  sails,    "  ' 
111'  tiiruishings,  were  su})plied  by  Orlando  Warner  for 

si'.sdo. 

1891. 

Chdrloffr  ('o.i  (83  tons)  was  built  and  launched  in  it.,  nm,  line 
this  year.      Her  hull,  s])ars,  etc.,  without  cabin  fur-    "'"■ 
iiisiiiii;;s,  rig-ii'lnji',  or  sails,  were  sup[)lied  l)y  Orlaiuh)^    l'oo  line 
Warner   for   vSr),<i()0.     He  estimated   the  balance   of    **• 
her  cost  at  82,800. 

Victona  ((59  tons)  was  built,  acccn-din*^  to  Captain  it-,  I'si- 
Sii'werd,  at  a  cost  of  over  >^11,()00.     McDonald  and 
Chirk  were  the  contractors.    Clark,  who  was  a  witness  H-,  lost. 
hctnre  the  Coininissimi  on  behalf  of  (ireat  Britain, 
stated  that  the  inice  which  they  received  fin-  the  coii-R-,  21b,  line 
structKUi  was  88,  (oO. 

Eiitrrprise  ((59  tons)  was  built  bv  Clark  at  a  costK-- 216,  line 
..ts9,()00.  • 

liesides  these  vessels  there  is  no  testimony  jiroduced 
on  behalf  of  Great  Britain  in  relaticni  to  the  c(>st  of 
l)nil(liiio-  vessels  at  Victoria,  exce))tin<>'  the  three 
'■("ooper"  vessels,  which  were  launched  in  1881  ami 
Iss-J.  There  is  some  evidence  liefore  the  C<nmnis- 
sidiiers  as  to  the  cost  per  ton  for  building-  at  Victoria 
in  the  years  1880  and  1887,  but  in  view  of  the  tact 
that  no  vessels  were  constructed  this  testimony  must 
have  been  mere  speculation  on  the  i)art  of  the  wit- 
nesses who  gave  it.  It  is  contemled  on  the  part  of  the 
I  nited  States  that  there  is  no  evidence  presented  on 
the  part  of  Great  Britahi  as  to  the  construction  of 
scalino- vessels  at  Victoria  which  has  the  least  bearing 
U|)(ni  the  market  value  of  vessels  at  that  port  in  the 
years  1886  and  1887. 

As  the  cost  of  building-  vessels,  in  the  absence  of  ■'"'■ 

e\  idence  establishing  a  market  price,  may  be  entered 
upon  in  determining  value,  it  is  considered  advisable 
to  fully  discuss  the  evidence,  although  it  is  claimed  by 


298 


EVIDENCE — VALUE    OF    VESSELS. 


E.,  1U86, 
20. 

R.,  1G87. 


K.,  1689, 
2. 


K.,  1718, 

7. 
E.,  1718, 

30. 
E.,  1718. 

34. 
E.,  1718, 

37. 

R.,  1718, 

40. 
E.,  1719, 

42. 
E.,  1719, 

62. 


tlu'  TiiittMl  Stiitos  tliMt  ii  iiifirki't  jn'ico  Jit  \'l('toriji  Ims 
been  shown.  TIk*  jtrincipal  witness  inn!  expert  on  tlic 
co.stot"l)uil(lin<i\esselson  tliePjieitieCoiist  in  1S8(I  iiiul 
1887  was  Matthew  Turner.  He  came  to  San  Fran- 
cisco in  I8r)(>,  iwu],  ha\  in<i'  pureliased  a  schooner  in 
1.S58,  coinnienced  a  c(»astin^'  trade.  Lentil  1S71  he 
continued  liis  occupation  as  a  master  of"  a  vessel, 
ownin;^'  at  tlie  .same  time  two  other  vessels.  In  1S71 
lie  established  a  shipyanl  at  an  Francisco,  havin<>' 
learned  the  tra<le  of  shijjbuih  \x  at  intervals  between 
1S.')3  and  1S71.  From  that  lime  until  the  present 
(18JI7)  lie  has  constructed  1S8  vessels  of  from  2(1  t(. 
over  400  tons  burden.  His  shii)yar<l  is  the  be.st  known 
on  the  Pacific  (^oast,  and  exceptin;^-  one  at  l'(»it 
lilakelev,  in  the  State  of  Washington,  the  larj^-es^  His 
knowled<4e  and  experience  make  him  an  expert  of  the 
hig-hest  class. 

I)urin<!f  the  past  fifteen  or  twenty  years  he  has  con- 
structed numerous  sealing  schooners,  and  other  craft, 
suitable  for  seal  hunting-.     In  18?^')  he  built  six  ves- 

liiiesels  of  this  class,  and  in  1880,  five;  all  of  these  were 
built  and  furnished  complete  "ready  for  sea."  Turner 
stated  that  in  those  years  a  vessel  of  30  tons  cost 
ap})roximately  Sllf)  a  ton  to  build,  and  that  a  70-ton 

liuo  vessel  cost  about  SDO  a  ton.  In  his  cross-examination 
he  was  (piestioned  as  to  vessels  which  he  had  con- 
structed. His  evidence  can  be  summarized  as 
follows: 

!"'«      Emma  (42  tons),  built  in  1885  for  85,800. 

Sail  Jose  (li.  51  tons),  built  in  188(5  for  85,200. 
rraii  (83  tons),  built  the  same  j'ear  for  89,500. 

Moi  Wahnr  (S3  tons),  built  at  .the  same  time  at  a 

cost  of  89,000. 
!'"«     Lavhm  ((58  t(»n.s),  Imilt  in  1886  for  87,232. 
line     i\^  witness  explained  that  in  the  ease  of  the  Euiiim 
line  she  was  finished  as  a  yacht,  with  aw  ning,  etc.,  at  an 

extra  cost  of  81,000;  and  he  also  exydaiiied  that  the 


line 
line 
line 


EV1DEN(JE VALUK    OF    VES8F.LS. 

l.iirnni  liiul  extra  t'lU'iiisliinns,  wliicli  incri'iiscd  her 
inst  licyoiid  tilt'  usual  price  jkt  tou  for  a  vessel.  It 
>|iniil<l  also  l)e  noted  in  this  connection  that  Caplain 
.Milican,  whose  experii-nce  has  already  been  dis- 
(IIsxmI,  fixed  the  averaji'c  pi'ice  pel"  ton  for  a  new 
xiiliiiji'  vessel,  "ivady  for  sea"  in  the  port  of  San 
iTiiiicisco,  at  81  Go. 

Ill  coiniection  with  the  cost  of  l»uildin}»  sealin<i' 
vessels,  and  in  <u'der  to  make  such  evidence  material 
ill  (l('terminin<;'  market  value,  it  is  nece?;,^arv  to  con- 
>ii|(i'  the  annual  depre<'iation  or  "wejir  ami  tear"  <»f 
vessels,  which  also  becomes  important  in  determinin<>' 
the  \alue  of  vessels  which  had  partially  comjdeted 
their  voya<i'es.  Turner  stated  that,  with  onl'inniji 
Clin  and  repairs,  a  vessel  depreciates  about  10  per 
cent  per  annum.  His  reas()nin<»-  upon  this  (juestion 
(ii'(h'preciation  is  extremely  clear  and  full. 

('aj)tain  Anderson,  whose  experience  has  already 
hecii  fully  discussed,  stated  that  the  annual  deprecia- 
tidii  is  about  10  per  cent,  addino-  that  there  is  a  difl'er- 
eiicc  of  opinion  as  to  the  first  year  after  buildinji';  that 
sdiiie  consider  the  wear  and  tear  at  10  ])er  cent,  while 
others  place  it  at  but  5;  and  that  he  would  consi<ler 
tliiit  a  vessel  twenty  years  old,  kept  in  a  seaworthy 
(•('iidition  by  re))airs  or  partial  rebuildin<»',  would  be 
Wdith  api)roximately  40  per  cent  of  her  original  cost. 
Ill  the  examination  of  Captain  Siewerd,  a  witness 
sworn  on  behalf  of  Great  Britain,  the  followiu}"' 
appears: 

The  (Jonunissioner  on  the  })art  of  the  United  States: 

<i).  What  would  the  ordinary  wear  and  tear  be? 

A.  The  ordinary  wear  and  tear  would  be  10  per  cent. 

riie  Commissioner  on  the  i)art  of  Her  Majest}*: 

'^  Do  you  deduct  10  per  cent  for  wear  and  tear  on  a  vessel 
twu  years  old  ? 

A.  It  is  the  custom  to  allow  that  on  the  average  every 
year  as  we  go  along. 

The  fonowin«»-  appears  in  the  examination  of  J.  D. 


299 


K.,    1118,   line 
L'8. 


!{.,  Ifi'JO,  lino 
ti3. 


U.,  lU'Jl. 


K.,  1700,  lino 
16. 


i 
I 


K.,  1700,  lino 
51. 


K.,  1244,  line 
63, 


R.,  1244,  lino 
61. 


300 


EVIDENCE VALUE    OF    VESSELS. 


Warren,  ag-eiit  of  tlie  ])rincipal  claimaut  Ijefore  the 
Hioli  Coininissioners: 

l^y  tlie  Coniinissioner  on  tlie  part  of  tlie  United 
States: 

E.    915   lino     Q-  Wliut  woulcl  it  cost  to  retit  this  Thnrnton*    I  do  not 
67.     '        mean  the  outfit;   but  you  say  you  thorouglily  retit  every 
autunjn;  liow  ujucli  did  it  cost  eacli  year  to  retit — talve  the 
Thornton,  for  instance? 

A.  Well,  she  would  cost,  oh,  I  should  say 

Q.  1  am  speaking  simply  of  the  vessel  herself,  to  make 
good  her  wear  and  tear? 

A.  I  think  she  would  take  fully  81,000  a  year,  one  year 
with  another;  one  year  she  miglit  not  take  so  much  and 
another  a  good  deal  more. 

Q.  Do  you  mean  the  wear  and  tear  would  be  as  much  as 
that  ? 

A.  The  running  gear  is  a  good  deal,  and  the  sail  is  a  good 
deal,  and  then  they  ha"e  to  be  thoroughly  overhauled  and 
re[)aired,  and  if  they  require  any  caulking,  to  get  it,  and 
once  in  a  few  years  have  to  i)ut  in  new  chatting,  and  overhaul 
them. 

Q.  Do  you  mean  a  vessel  of  the  size  of  the  Thornton  would 
take  that! 

A.  1  think  she  would  take  fully  that. 

Q.  That  would  represent  the  wear  aiul  tear,  would  it? 

A.  Yes;  I  think  she  would  take  about  that.  The  sealing 
business  is  a  pretty  hard  business  ou  these  little  vessels. 

line  Matthew  Turner,  in  fnrtlier  (liscussino-  the  (juestion 
line  of  depreciation,  stated  tliat  in  liis  <^)|)inion  a  vessel  wliicli 
Ii'mI  been  lengthened  wouhl  decrease  in  vahie  from 
l.")  to  20  per  cent  per  annum,  and  that  a  vessel  whose 
ludl  had  been  injured  by  refitting-  for  steam  would 
depreciate  more  tlian  the  annual  rate  of  10  per  cent. 
^•^j^i692,  line  jx;^  explanations  as  to  how  a  vessel  wouhl  be  injured 
lino  by  lengthening',  and  how  affected  l)y  putting-  in  steam, 
are  full  and  ex])licit.  It  is  asserted  l)y  the  United 
States  that  in  any  consideration  of  the  cost  of  build- 
ing vessels,  which  may  be  deemed  necessary  for  the 
purpose  of  determining  market  value,  the  question  of 
depreciation  nmst  also  be  taken  into  account,  and 
that  such  vessels  among'  those  seized  as  had  been 


R.,  1692, 

62. 
R.,  1695, 

20. 


R.,  169.S, 
i. 


X'tbrc  the 
le  United 


I  do  not 
relit  every 
t — take  tbe 


If,  to  make 

n",  one  j^ear 
much  and 

SIS  imieli  as 

lil  is  a  {iood 

hauled  and 

get  it,  and 

lid  overhaul 

niton  would 


raid  It? 
The  sealing 
vessels. 

L'  (jiu'stion 
.ssei  which 
ill  lie  from 
<sel  wliose 
(im  woiihl 
'  per  cent. 
:)e  injured 
'  in  steam, 
le  United, 
ot"  build- 
y  for  the 
lestion  of 
Hint,  and 
lad  ])een 


EVIUENCK VALUE    OF    VESSELS. 

Ituiithened  or  fitted  with  steiuu  must  l)e  valued  in  the 
linht  of  Mr.  Turner's  testimony. 

The  United  States  (daim  that  from  the  foreyoiny 
ic\ic\v  of  tlie  evidence  sul)mitted  in  rehition  to  tlie 
Mihics  of  the  \essels  sei/ed  for  wliieli  (daims  are 
iiKiilc,  the  foHowinji'  facts  have  been  establislied: 

First.  That  in  the  years  1SS(;  and  1«87  there  was 
a  iiiiirket  at  Victiuda  for  vessels  suitable  for  sealinji', 
;iii(l  therefore  a  market  valiie  for  \essels  of  that  (dass 
ill  that  port. 

Second.  I'hat  there  were  no  shipyards  at  Victoria 
at  tiiat  time  whiidi  were  eni])loyed  in  the  construction 
(it  scaling'  ^(diooners,  but  to  a  certain  extent  the  shij>- 
wiiiihts  there  were  eii^aoed  in  repairin<>'  vessels  used 
t'ci  sealino-  purposes. 

Third.  That  the  source  of  supply  for  the  Victoria 
market  in  1886  was  San  Francdsco,  and  the  market 
price  at  Victoria  was  o(»verned  by  the  prices  rulinji' 
lit  San  FrancMsco,  with  the  customs  duties  and  cost  of 
tiaiisportati(»n  added. 

Fourth.  I'hat  the  siuirce  of  sup])ly  for  the  \'i"toi*ia 
Jiiarket  in  1887  was  San  Frantdsco  and  Nova  Scotia, 
and  that  tlie  market  price  at  Victoria  was  o-overned 
accordinodA'. 

Fifth.  T'hat  the  cost  (tf  buildin<i'  vessels  in  1S86 
and  1S87  at  Victoria  nuist  be  conjectural,  based  on 
no  actual  experience,  and  excessive  of  the  cost  of  ves- 
s(ls  imported  from  San  Framdsco  or  Nova  Scotia; 
and  that  such  cost  of  buildin<i',  even  if  it  could  be 
established,  would  form  no  basis  upon  which  experts 
cnuld  calculate  the  market  value  of  vessels  in  those 
\cars. 

Sixth.  That  shi})wri^dits  en<ia<<ed  in  their  *.ade  at 
\  ictoria  in  1886  and  18M7,  who  ])ossessed  no  knowl- 
tdiic  of  sales  of  vessels  at  that  port  or  at  the  i)ort  of 
San  Francisco,  and  whose  knowledo-e  durin<i'  this 
jH  riod  of  the  cost  of  building   does  not  come  from 


301 


302 


EVIDENCE VALUE    OF    VESSELS. 


other  experience  tliaii  niakinu'  re))air.s,  are  iiicompo- 
teiit  to  <.;ive  ex[)ert  testimony  as  to  the  value  of  tlio 
sealing-  vessels  in  (][uestion. 

Seventh.  That  witnesses  who  in  18X0  and  1S87 
wer(»  familiar  with  the  market  of  San  Francisco  and 
the  ruling  prices  there,  and  witnesses  who  had  kiiowl- 
e<lge  of  sales  and  transfers  of  sealing  vessels  at  Vic- 
toria, are  competent  to  give  expert  testimony  as  to 
the  value  of  the  vessels  in  (juestion. 

Eighth.  That  the  sales  of  sealing  s<!hooners  at  tlio 
ports  of  Victoria  and  San  Francisco  during  the  years 
1S8G  and  1887  are  proper  data  for  the  computation 
of  the  market  value  of  vessels  in  those  years. 

Ninth.  That  the  remoteness  of  Nova  Scotia,  the 
su})eriority  of  the  vessels  there  produced  in  material 
and  construction  to  the  schooners  built  on  the  Pacific 
Coast,  and  the  small  nund)er  procured  from  there  in 
188()  and  1887,  make  the  prices  paid  for  Nova  Scotian 
\essels  delivered  at  Victoria  of  but  little  value  in 
establishing  the  market  price  of  schooners  at  the 
latter  port. 

Tenth.  That  the  sales  of  vessels  at  the  port  of  San 
Francisco  form  a  proper  basis  for  the  computation 
of  the  market  value  of  sealing  vessels  at  Victoria  in 
the  years  188(i  and  1S87;  and  in  the  absence  of  proof 
of  an  actual  market  value,  the  cost  of  building  in  the 
former  port. 

Fleventh.  That  the  numl)er  of  vessels,  sales,  and 
transfers  at  the  ))ort  of  San  Francisco  in  18S(i  and 
1877  is  evidence  of  the  supply  which  existed  for 
meeting  the  demands  of  the  \'ictoria  market. 

It  is  ])roposed  at  this  ))oint  in  the  Argument,  and  ni 
connection  with  tiie  preceding  review  of  the  evidence 
and  witnesses  jtroduccd  by  both  high  contractinji' 
parties,  to  briefly  examine  the  (daims  made  for  vessels 
seized  by  the  United  States,  and  for  the  value  of  wliich 
it  is  asserted  the  United  States  have  become  lialde. 
In  all  of  the  testimony  as  to  value,  it  is  (daimed  that 


^."••■^ 


iiU'(mi])o- 
alue  of  tlio 

and  1887 
iiicisc'o  and 
lad  kiiowl- 
\e\s  at  Vie- 
iioiiy  as  to 

iiers  at  tlie 
the  years 
DHiputatioii 
irs. 

►Scotia,  the 
ill  material 
tlie  Pacific 
>iri  tliere  in 
>va  Sc'otian 
[e  value  in 
lers   at  the 

)()rt  oF  San 
Dinputatioii 
Victoria  in 
ice  of  proof 
(lin<>-  in  tho 

sales,  and 
1  18M(i  and 
existed  for 
et. 

ent,  and  ni 
e  evidence 
'oiitractiii^' 
t«  >r  Vessels 
leof  \vlii(di 
nne  liable, 
niiiied  that 


EVIDENCE VALUE  OF  VESSELS.  303 

wi'iii'  and  tear  which  the  vessel  had  suffered  at  the 
time  (»f  seizure  must  be  taken  into  consideration. 

CAROLENA. 

The   Caroleua,   seized  the   1st  Au^'iist,    18S6,   wasApp.  b,  29. 
huilt  at  San  Juan,  United  States,  at  a  date  uncertain. 
Slic  was  reji'istered  at  Victoria  in  1870.     The  vessel 
was  00.8  feet  in  leng-th,  1(J.5  beam,  and  o.a  depth  of 
liold,  with  a  gross  and  registered  tonnage  of  27.3().^'' ^'o,  line 
Slic  was  constrncted  of  soft  wood,  and  fastened  with 
1il(i(dv    iron,   not    galvanized.     The   wood    nsed   was r.,  178,  line 
( )r('gon  pine  or  Douglas  fir.  ^• 

Mr.  Alexander,  who  saw  the  Carolena  in  1888,  stated Rv  -^70,  line 
that  she  had  "])rimitive  lines  as  com])ared  with  mod-R.,  488,  line 
cYu  build,"  and  that  she  was  of   an  "(dd-fashioned    *'*• 
type,"  "full  bow,"  and  ''had  but  very  little  de;;d  rise," 
and  that  "she  had  very  full  lines  irom  bow  ti  aft  all 

over." 

( "aptain  ^[iner  also  said  of  her  that  "she  was  a  very  R-.  537,  line 
old  style — that  is,  in  model." 

dailies  1).  Warren  spoke  of  her  as  a  " small-sized" «•-  229,  line 
\(sst'l  of    sliar[)  build,   but  added  that  he  did   not 
txainine  her  after  she  was  rebuilt. 

*  )i  the  witnesses  sworn  on  behalf  of  Great  Britain 
iis  to  the  \alue  of  the  ('arohnia,  aix  base  their  oplnioti 
iijiiiii  irlidf  if  iroiihl  cost  to  tniild  a  vcssct  }tew  in  Victoria 
lit  llidt  time.  Their  occujiation  an<l  the  valuations 
they  give  are  as  follows: 

dohn  liobinson,  journeyman  ship  carpenter,  Sr),()00.  R'  ^^*- 

Walter  Walker,  journeyman  ship  cai'iienter,  ^4,000.  H,i78,  lined. 

Alexander    Watson,    journeyman    ship    carpenter,  K'.,_188,  lino 
idiniit   s4,()()0;    and   is  so  cited   in  the  Argument  on 
hchalf  of  (ireat  Britain. 

riie  last  witness,  on  being  corrected  as  to  his  idea Rj  1*^0,  line 
'if  die  size  of  the  (.'arolciio,  changed  his  valuation  to,j  ^y,,  jijj^ 
^."..STo.  2o. 

Orlando  Warner,  jouriun'man  ship  carjtenter, R)  19V,  line 
^;;,s(M)  ,„•  s4,00{).         ■  ■ 


304 


EVIDENCE VALUE    OF    VESSELS. 


E.,  191,    Hue 
'JO. 


R.  16J>. 


E.,    22!t,  line 
42. 


R.,241,line7. 


R.,87. 


E.,  119. 


E.,  1024,  line 
10. 


E.,  209,   lino 
38. 

E.  153. 


E.,  200,  lino 
34. 

E.,  1031,  line 
62. 


Jolm  Siibistoii,  N}Uiaiiii()  pihtt,  >'^r),0()0. 

S.  Mc(/.  Smith,  ninstcr  sliipwri<>lit,  who  never  saw 
flio  vessel,  'nuiuinwd  ishe  was  worth  about  ^3,()00  (tr 
S3,7(M). 

l^esides  the  tbreji'oiiig'  witnesses,  WiHiain  'l\ir|)(^l. 
l)roj)rietor  of  a  slii])yard  at  Victoria,  placed  a  vmIik' 
of  about  >S4,()0(I  upon  the  C<frolei/(i,  "if  she  was  as 
good  as  they  say  she  was." 

James  D.  ^yan•en,  agent  of  the  principal  claimant 
before  the  (*onuuission,  state<l  that  he  would  consider 
the  vessel  worth  v:^4,(X)(),  although  he  wid  not  examine 
her  after  she  was  lengthened. 

Charles  Spi-ing,  also  a  large  claimant  before  tlie 
Commission,  placed  her  value  for  scfdirifj  purposes  iu 
her  otntrr  in  the  neighborhood  of  83,<S0()  or  84,000. 

William  JMunsie,  the  alleged  owner  of  the  vessel, 
stated  that  she  was  valued  in  1<S85,  when  he  l:)ecaine 
interested  in  her,  at  about  83,<S0(),  but  that  he  would 
"not  l)e  positive." 

According  to  the  considerations  expressed  iu  the 
various  bills  of  sale  to  and  mortgages  from  a\lunsit'. 
the  value  of  the  Carolci/d  at  that  time  was  •S'ijOOO. 
Patrick  Hickey,  who  was  half  owner  of  the  vessel 
when  she  was  sold  in  18S"),  stated  that'he  received 
^Sl,()0()  as  his  share  of  the  purchase  price,  and  that 
C^aptain  Urcpihart,  who  uiade  the  sale,  told  him  that 
lie  had  sold  the  vessel  f<»r  ^2,000. 

As  corroboration  of  the  last  valuation,  it  aj)pcai's 
thi'.t  the  len<>'thening  of  the  vessel  renewed  al)(iut 
two-thirds  of  her  hull,  and  that  such  rei)airs  cost 
8900.  At  the  same  rate,  although  repair  work  was 
more  expensive  than  the  construction  of  a  new  vessel, 
the  entire  hull  of  the  (kirolena  could  have  been 
replaced  new  for  81,*2()0. 

Orlando  Warner,  who  built  the  hull  of  the  Chnr- 
lotte  Cox,  estimated  that  the  cost  (►f  the  outfit  would 
be  one-third  of  the  cost  of  the  hull ;  and  the  sauie 


never  saw 
•^3,<!00  (.r 

ini  Turpel. 
;e(l  n  \jihK' 
she  was  as 

ill  elaiiiiaut 
1(1  consider 
i>t  exaiiiiiif 

before  the 
puyp(m's  ill 

Y  84,000. 
(lie  vessel, 
lie  beeaiiie 

It  he  would 

fssed  ill  the 
)in  ]\[iinsie, 
^-as  •S-JjOOO, 
the  vessel 
lie  received 
e,  and  that 
Id  him  that 

it  a})j)ears 
wed  about 
epairs  cost 
r  work  was 
new  vessel, 
have   been 

the  Clm- 
Litfit  would 
I  the  sanie 


wm 


EVIDENCE VALUE    OP    VESSELS. 


3U5 


iati(»  is  given  by  the  witness  Gavin  in  the  ease  ot"  tlie 
Dolphin. 

It"  correct  in  their  opinions,  the  Carolena  was  wortii 
ccrtiiiiily  not  over  81,(j00  or  81,700  new. 

The  witnesses  sworn  on  behalf  of  the  United  States 
expressed  their  valuation  of  the  vessel  entirely  upon 
the  prices  ruling-  in  the  Victoria  and  San  Francisco 
markets  at  that  time. 

Alexander  McLean,  who  spoke  from  knowledge  of 
the  \  ictoria  market,  stated  that  tlie  Carolena  when  he  K-  ^^^>  line 
saw  her  in  188;')  was  probably  wortli  81,700. 

A.  B.  Alexander,  basing  his  opinion  upon  an  ex- 
aiiiiiiation  of  the  vessel  in  1888,  placed  the  valuation    29.    ' 
at  between  Si, 800  and  82,000,  not  exceeding  82,000. 

Charles  E.  Raynor,  whose  experience  as  to  the  k.,  503,  line 
value   of  vessels  is  confined   to  the  San  Francisco 
market,  placed  her  value  there  at  81,000  to  81,200. 

Edward  P.  Miner,  who  saw  the  Carolena  in  1889  at  ^-^.^3^'  i"'® 
Liuilaska,  stated  that  a  difference  in  valuation  between 
her  and  a  new  ship  of  modern  construction  and  build 
would  be  fully  50  per  cent. 

Heing  asked  what  she  was  worth  in  the  market,  he 
replied: 

111  the  market  I  thiuk  she  would  be  probably  useless,  r.,  538,  line 
unless  there  was  some  special  business  to  put  her  into  that    5- 
slio  could  accomplish. 

Again: 

In  the  market  generally  a  vessel  that  had  been  built  up  so 
much,  of  that  age,  would  be,  I  think,  comparatively  useless. 
There  could  be  no  market  value  set  on  her. 

THORNTON.  i     ' 

The  T/wrwto>/,  seized  August  1,  1886,  was  built  at  , 

Dungeness,  in  Washington  Territory,  United  States, 
in  isdl.    She  was,  according  to  the  transcript  of  regis- App.  b,  pp. 
U'v.  51.1  feet  in  length,  19.2  feet  in  beam,  and  5.1  feet    ^^^'  ^^3. 
ill  depth  of  hold.     Her  registered  tonnage  vas  22.30. 
B  s 20 


306 


EVIDENCE VALUE    OF    VESSELS. 


It  is  apparent  from  lier  diniensions  and  tonnage 

tliat  tlie  vessfl  was  broad,  flat-bottomed,  and  of  an 

antiquated  model,  and  this  is  confirmed  by  the  fact 

R.,  85it,  liiiethat,  ])ri(»r  to  1877,  wlien  siie  was  (•luin<'ed  from  a 

•"'8-  sloop  to  a  schooner,  she  had  a  centerboard. 

E.,  lOHit,  lino      Capt.  Alexander  McLean  states  that  she  was  an  old 

^^-  model. 

K.,  lOot),  liiiti      Captain  Raynor,  who  saw  her  in  Unalaska,  where 
^-  she  was  taken  after  seizure,  states  that  "she  was  a 

very  old-fashioned  model — about  the  same  model  of 
vessels  built  abou  1  SoO  and  ISoS." 
If..  lOoti.  lint'  It  would  appear  from  the  evidence  that  the  vessel 
was  in  a  dilapidated  condition  at  the  time  of  her  sei- 
zure, as  her  mainmast  was  broken  off  about  7  feet 
below  the  crosstrees,  and  her  fore  ri<)'<>in<j;'  was  carriejl 
away. 
R. ,»!(>, lines.  Tluit  her  condition  in  those  years  demanded  exten- 
sive repairs  every  year  on  the  ])art  of  her  owners  is 
apparent  upon  the  statement  of  F.  I).  Warren,  that 
the  annual  wear  and  tear  upon  the  vessel  would  be 
fully  is  1,000. 

This  may  in  a  measure  be  accounted  for  by  the 

fact  that  she  was  wrecked  in  the  early  summer  of 

R..  !»!!»,  lint-  1B88  ou  the  west  coast  of  Vancouver  Island,  at  a  point 

49-  where  she  was  exposed  for  several  weeks  to  the  full 

R.,  ifl6s,  line  sweep  of  the  southwestern  o-ales  wliit^h  prevail  at  that 

period  of  the  year. 
R.,  1)37,  line      Accordin<>-    to    Warren,    her    enji^iiie    was    small, 
R.^  844,  line  ^^^^^  ^t  w<mld  appear  from  the  evidence  that  it  was  of 
•iL  little  value  to  the  vessel  as  she  was  towed  into  Bering- 

54.  '  !^ea  throuji-h  Unimak  Pass  by  the  Dolplnn^  although 
^•^1*'^**' ""*  at  the  time  she  had  all  sails  set  •A\\i\.  \\"a^  under  full 
R.,  1613,  line /<mrf  ofsteam. 

R^\m   line     Captain  Warren  stated  that  he  purchased  the  ves- 

23.'    '        sel  three  years  after  she  was  built  for  81,800.     He 

40.    '    '"*' placed  a  value  on  her  at  the  time  of  seizure  of  $6,000. 

Exhibit,    G.      In  coiniectioii  with  this  valuation  of  Captain  War- 

B.,  47.  1 


vesso 


EVIDENCE VALUE    OP    VESSELS. 


307 


ul  toiiiiao'e 

and  of  an 

)y  the  fact 

i'ed  from  a 

was  an  old 

,!ska,  wlieiv 

she  was  ;i 

le  model  of 

tlie  vessel 

of  her  sei- 

l)out  7  feet 

was  earrieil 

iided  exteii- 
r  ovvnei's  is 
''an-en,  that 
)!  wouhl  he 

for  Ijy  tlie 
summer  of 
I,  at  a  point 

to  the  full 
vail  at  that 

was  small, 
fit  it  was  of 
into  Berino- 
%  although 
s  under  full 

ed  the  ves- 
[,800.  He 
!  of  $6,000. 
ptain  War- 


ren's, his   testimony  in    Warren    v.  lioscowitz   is    of 

interest: 

!i;il.  Q.  I  want  you  to  state  as  nearly  as  you  can  what  theR.,  944,  line 
cost  of  these  vessels  was.  24. 

A.  Tiie  cost  of  running  them? 

Ii.lti.  Q.  No;  the  vessels, 

A.  Well,  I  put  the  Thornton,  I  think,  at  $4,000— that  is, 
the  time  she  had  her  machinery  put  into  her  aud  was  made 
a  steamer  of. 

( )n  redirect  examination,  (.*a])tain  A\^irren  endeav- 
med  to  explain  away  these  statements,  but  the  lan- 
<>uai:'e  is  too  jdain  to  deprive  it  of  the  weight  it 
])(»ss('sses. 

The  Thornfon  was  mortg-ao'ed  in  l^So  by  Warren '^'^g^^^^' ^'"® 
t(i  Hos((>wit5c  for  the  sum  of  84,000,  and  sold  at  pub- 
lic auetion,  after  being-  rej^-ularly  advertised,  for  Sl.OO,  ^■'^q^^'^'  ^'"^ 
sul)j('('t  to  this  mort<>'at»'e. 

It  appears  also  by  the  charter  party  from  Warren's    20.    '  '"* 
assignee  to  lioscowitz,  dated  February,  ISSO,  that  the 
vessel  could  not  be  sold  for  the  amount  due  on  the 
Miortji-a^'e. 

Tilt  annual  wear  and  tear  on  the  Thornton,  as 
<;iven  li»v  Captain  Warren,  must  be  deducted  from 
any  valuation  made  of  the  vessel,  as  she  had  com- 
l)K'ted  over  three-fourths  of  her  voyage. 

In  the  Argument  on  behalf  of  Great  Britain  the Bi;-.,  Arg., 99, 
value  claimed  for  the  Thornton  is  87,000,  or  $1,000 
more  than  is  claimed  hi/  her  alkf/ed  owner. 

The  evidence  relied  upon  in  the  Argument  as  to 
the  valuation  of  the  vessel  is  entirely  based  uj)oii  tes- 
testimony  of  what  it  would  cost  to  build  a  new  vessel 
of  (I  similar  type.  Four  journeymen  ship  carpenters 
were  jjroduced  to  establish  such  a  valuation. 

!I.  J.  Cook  gave  her  value  in  1881  at  85,500,  but^-^p.^^^'  ^^"® 
stated  that  he  was  "not  talking  about  the  market 
value." 

\\  alter  Walker  said  that  he  "considered  she  was    25.    ' 
W(.rth,  machinery  and  all,  about  $6,000  in  1886." 


308 


EVIDENCE — VALUE    OF    VESSELS. 


K.,  ii()5,  line  WiHium  Slieglitlioliu  valued  her,  ])efore  her  iiia- 
ehinery  was  put  in,  at  about  85,000,  and  in  1886, 
machinery  an(l  all,  at  "perhaps  something'  over 
87,000." 

R.,  1028,  line     (>.  W.  Cavin,  wlio  was  employed  to  float  the  ves- 


44 


ated 


supi) 

PYpT 


iv 


or  >i(J,( 


)unded 
posed  ''she  was  worth  ])rol 
exp'.'sive  of  her  maehinery." 

besides  the  vshi])  carpenters  above  referred  to,  a 
report  of  Assistant  Treasury  Agent  Lavender  is  relied 
upon  in  the  Argument  as  to  the  valuation  of  the 
vessel. 
R.,  966,  line  Mr.  Lavender  saw  her  in  IStK)  on  the  beach  at 
Unalaska,  and  he  states:  "I  should  think,  when  new, 
that  S 7,000  would  be  a  fair  piice  for  her,  including 
her  engines  and  all  other  accouterments,  ready  for 
sea." 

It  is  evident  that  this  statement  may  be  placed  in 
the  same  category  as  the  testimony  of  the  ship  car- 
penters referred  to,  who  base  their  valuation  upon  the 
cost  of  building  new  vessels  in  1880. 

On  the  question  of  market  value  but  one  witness 
a])pearsby  the  Record  to  have  given  evidence — Capt. 
Alexander  McLean — and  he  testified  as  follows: 

K.,  1069,  line     J  think  from  her  age  auu  appearance  at  that  time,  and  from 
"•  the  other  vessels  that  were  changing  hands  here,  I  think  she 

would  be  worth  about  $1,800,  outside  of  the  machinery. 


App.    B, 
104. 


ONWARD. 

The  Onnard,  seized  2d  August,  1886,  was  built  in 
California,  United  States,  in  the  year  1871.  Accord- 
ing to  the  transcnpt  of  register,  her  length  was  fiG.S 
feet,  beam  20  feet,  and  depth  of  hold  4.5  feet.  She 
had  a  registered  tonnage  of  35.20.  She  was  con- 
structed of  the  usual  material  used  upon  the  Pacific 
Coast,  termed  indiscriminately  Oregon  pine  and 
Douglass  fir. 

As  to  tlie  value  of  this  vessel,  five  ship  carpenters 


her  ma- 
in 1886, 
lUg"    over 

the  ves- 
1  that  ha 
>r  8(),()O0, 

red  to,  a 
r  is  relied 
)n  of  the 

beach  at 
irhcN  new, 
including 
ready  for 

placed  in 
!  ship  car- 
i  upon  the 

18  witness 
ce — Capt, 
ows: 

3,  and  from 
[  thiuk  she 
inery. 


s  built  ill 
Accord- 
was  r)6.5 
set.  She 
was  coii- 
e  Pacific 
jine   and 

iirpenters 


EVIDENCK VALUE  OF  VESSELS.  309 

were  sworn  by  (Jivat  Hritain,  all  of  whom  based  tlu'lr 
csriiiiiitcs  upon  the  (•(►st  at  N'ictoria  in  1S8(!  of  l)uil(l- 
iiin  \('ssels  similar  to  the  Oiiirard. 

Hubert  J.  C^)ok,  ou  beiim-  asked,  "What   is  vourR-  «5;5,  line 
cstiiiiate  of  th(^   cost  of  the  Onn-did   in    1SS6?"   an- 
swcivd,  "I  considered  between  s4,()0()and  >^5,0(H),  or 
<(»iiii'rliing-  like  that." 

Orlando  Warner,  who  state(l  that  he  did  not  know  ^-'q ^^^'  ''"^ 
the  age  of  the   vessel  and  never  worked  upon  her, 
estimated  her  value  in  the  neighborhood  of  ^4,000  to 
s.O.ooo  "ready  for  an  ordinary  trij)." 

Samuel   Sea  stated  that  he  should  think  a  vessel  R-,  856,  Hue 
(if  her  kind,  as  she  was  then,  would  be  worth  84,000. 

.Vlexander  Watson,  jr.,  gave  his  opinion,  fromhav-R.,  858,  line 
iii;^  seen  her  in  the  harbor  on  several  occasions,  that    ^^' 
she  was  worth  from  s4,32o  to  >^5,0()0. 

Walter  Walker  stated  that   he   should  judge  herR.,«60,iinoL 
v;ilue  to  be  about  84,000. 

Hesides  these  five  witnesses  sworn  as  experts, 
Charles  Spring-,  half  owner  of  the  vessel  and  the 
cliiimant  in  this  case  before  the  Coniniission,  was  also 
swnrn  on  behalf  of  Great  Britain  as  to  the  value  of  the 
vessel.  Being'  asked  for  his  opinion  as  to  her  value, 
he  re))lied:  "  I  put  her  down  at  84,000,  conshlcr'nin 
tlidf  she  was  worth  evertj  hit  of  that  to  me  at  that  S2)ecial^'f^^^^^>  ^'°® 
tiiiii'." 

Oil  cross-exaniination  he  was  asked:    "Did  you R.,8 Aline i. 
iiireiid  to  testify  to  the  market  value  of  the  Onward 
ill  iSSd?"     To  which  he  answered:   "No,  no;  jast 
irlidf  she  W((s  irorth  to  ni/fself  enf/of/ed  in  that  htusincss, 
Imrii/i/  nothinfj  to  hear  on  the  market  whatever. ^^ 

Die  Old}'  two  witnesses  wdio  testified  as   to  theR-  900,  line 
iiiailcet  value  of  the   OnuHird  were  Captain  Raynor 
ami   ('apt.    Alexander    McLean.      The    former   was 
•  •11    board  of   the  vessel    at    Unalaska    inunediately 
after  the  seizure  and  stated  that  he  considered  the    '32!    ' 
market  value  of  the  Onward  in  1886  to  be82,000. 


310 


EVIDENCE — VALUE    OP    VESSELS. 


R.,  1070,  line     Ca})t.  Alexander  McLean,   wlio  was  lialf  owner 

r/io7o  line^^  *^*®    vessel,  stated   that   he   would   consider  tlie 

8.  Onward  to  be  worth  in  the  port  of  Victoria  in  tlie 

year  18H(;  from  !iji2,200  to  ii52,30(). 

R.,  «79,  line      In    (corroboration    of    this   testimony   of  Captain 

McLean's  it  appears  that  the  Onward  was  transferred 

.  in  June,  1884,  to  Charles  Spring-  &  Co.  for  !«!2,200, 


61. 


ANNA    HECK. 


App.,  B,  p.      The  ^«/m7>V6'A' was  built  at  San  Francisco  in  1865. 

Her  lenoth  was  (i'd.l  feet,  beam,  22.6  feet,  depth  of 

hold,  i)  feet.     She  had  a  registered  tonnag-e  of  3().35, 

R.^n33,iiue     gi,e  was  purchased  by  J.  1).  Warren  in  1872  tor 

R.,  975,  line  !!>4,000,  and  ill  1880  she  was  fitted  for  ste<am.     Only 

R.!^974  line  Cregfoii  pine  was  used  in  her  construction. 

59.  In  1883  she  was  bunied  to  the  water's  edge,  and 

R.,  1134,  line  i     -u     ^  i'^-   *      • 

15.  was  re  bunt  at  V  ictoria. 

K-.  1134,  line     Ca])tain  Warren  testified  that  the  cost  of  rebuilding 

R.,  1134,  line  was  about  !Br),000,  ^^everi/thing  complete.^^     The  machin- 

55.  gjy  which  had  been  in  the  vessel  when  she  was  bunied 

demanded   considerable  re|)airs,  and  the   S5,000,  it 

would  appear  from  the  evidence    c<ivered  whatever 

work  was  done  in  makinjj  the  enjiine  of  use. 

Five  witnesses  were  sworn  on  behalf  of  Gresit 
Ih'itain  as  ex])erts  upon  the  value  of  the  vessel.  All 
of  them  were  journeymen  ship  carpenters. 

Walter  Walker  considered  her  worth   88,000  or 

S9,()()0  wlieii  she  first  came  out  in  1883,  after  tlie 

R.^  978,  line  repairs,  and  estimated  her  de})recintion  in  four  years 

^"-        .     to  have  been  between  8500  and  81,000.     He  stated 

69.    '   '"^filwo  that  his  value  was  l)ased  "on  the  day's  work  and 

material,  whether  costly  or  not." 

Orlando  Warner,  who  worked  part  of  the  time  on 
R.,  1016,  line  the  Anna  Beck  while  she  was  under<>oin<»'  reiiairs  in 
1883,  valued   her  without   her   machinerv  at   from 
80,000  t(»  8(1,000. 


R.,   978,  line 
35. 


EVIDENCE — VALUE   OF    VESSELS. 


311 


CJeoi'ge  W.  Gavin  said  that  the  vessel  would  repre- 
sent at  that  time  ])et\veen  !iS6,000  and  87,000,  exclu- 
sive of  machinery.  On  cross-examination  he  stated 
that  she  was  probably  worth  !iS7,()00  or  $8,000, 
exclusive  of  machinery. 

Richard  Bennett,  who  .stated  that  he  had  not  seen 
iiuich  of  the  Anna  Beck  since  1HH3,  fixed  her  value 
at  about  80,500. 

.\11  of  these  witnesses,  as  heretofore  shown,  base 
their  valuation  ujxm  the  cost  of  buildin«»"  a  new  vessel 
at  Victoria  in  the  years  1«H3  or  1 886. 

It  must  be  also  borne  in  mind  that  the  co.st  of 
ie|)air  work  was  more  exj)ensive  than  new  work  in 
Victoria,  and  tiiat  a  vessel  similar  to  the  Avna  Beck 
could  have  probably  been  built  in  1883  by  the  day's 
work  for  a  sum  less  than  the  co.st  t>f  her  rebuilding', 
hut  at  the  time  when  the  accident  occurred  Warren, 
who  was  then  her  registered  owner,  was  absent  from 
Victoria,  and  the  repairing-  was  done  under  the 
direction  of  an  agent  or  attorney. 

Tlie  Annn  Beck  was  mortgaged  for  84,000  in  1884, 
l)y  one  Hartnell,  to  Joseph  Boscowitz.  Subject  to 
this  mortgage  the  vessel  was  sold  in  1885,  at  })ublic 
auction,  for  8l.  In  the  tall  of  1 886  she  was  again  sold 
tor  a  nominal  jn'ice,  subject  to  the  same  mortgage. 

in  February,  1886,  the  assignee  of  J.  D.  Warren, 
cliartered  the  Grace,  Dnljih'ni,  Anna  Beck,  Tliornfon, 
Itiisflcr,  and  one-half  of  the  W.  P.  Saiju-aid  to  ,Iose])li 
i)osc(»\vitz,  the  mortgagee.  In  the  jn'eamble  of  the 
chai'tci-  the  following  a])])ears: 

And  whereas  tlie  amount  due  to  the  said  Joseph  lioscowitz, 
npdii  tlie  said  uiortgas:es  or  bills  of  sale,  is  gieater  than  the 
sum  for  which  the  .said  schooners  and  mterest  can  be  sold 


K.,  1031,  line 
40. 


H..  1033,  line 
3. 


R..  1038,  line 

1. 
K..  1038,  line 

10. 


K..  1031,  line 
12. 


U.,  1080,  line 
(55. 


K.,  1087,  line 

1,">. 
K.,  1088,  lines 

10,  .-.3. 


H..  1087.  line 
12. 


Hearing  also  upon  the  ([iiestion  of  the  value  of  this 
vessel  is   the  fact   that   after   her   seizure    she    wasn.,  noe.  Hue 
ajipraised  at  Sitka,  witli  her  outfit  and  furnishing,  at    '"'^• 


sffiaaiiiffii 


312 


EVIDKNCE — VALUK    OF    VK8.SKLS. 


H.,  IL'TII, 
53. 


liii 


R.,  1278, 
14. 


Ifi'- 


R.,  1270, 
20. 


In  ji  letter  fVoiii  the  riiitcd  StJitcs  iiiiirsluil  to  tli( 
AftiiiLi'  Att(»i'n('y-(  M'lKM'iil  of  the  I'liited  Stntcs,  datcil 
Aiijiiist  23,  ISSS,  the  t'ollouiiijn'  ji|)|)eiirs: 

The  owiiiTs  of  the  schooiiei.s  Ainin  llcck,  (Iravc,  and  IM 
jiliht  ch»iiii  tliiit  the  appraiseiiieiit  iiia<le  at  Sitka  one  yt'ai 
ajio  was  ot  the  time  r.rcrssii'cuwd  tliat  tlieii'  vahie  on  accdiint 
of  the  iiirlenient  weather  of  Ahiska  has  in  tlie  nieautiiiu' 
coiistaiitly  been  depreeiated.  and  tlierefore  declined  to  bond 
tiiein  at  such  ap|>raisenient,  wliicii  if  not  jiianted  they<h'sire 
tlie  sale  to  procee<l. 

The  owner  says,  however,  that  he  will  furnish  satisfactory 
bonds  for  the  schooner  Anna  llvck^  at  her  present  appraised 
value,  if  it  can  be  effected  subject  to  a  tinal  settlement  of  the 
matter  and  without  expense  of  (in  appeal  to  the  Supicnu' 
Court. 

line      A  similar  statement  aj)]»eiirs   in   u  letter  from  tiic 
Secretary  of  State  to  the  Mritisli  minister  at  VV^asliint 
ton,  dated  Sei)tend)er  27,  iSSS. 

On  the  4th  of  .Fnne,  ISSII,  a  committee  of  the  lion- 
orahle  the  Privy  (Vnuicil,  apjn'oved  by  Mis  Excel- 
lency the  Governor-General,  in  conncil,  referrin<if  t(»  a 
former  report  adopted  in  December,  1HS7.  in  relation 
to  tli(^  'vizni-e  of  the  W.  I*.  Sdi/iranl,  (rrarc,  Anini 
fjcfi:,  ihq)li'ni,  and  Ada,  re[)orte<l  that — 

line  Or..-  vessel  was  released  on  the  l."»th  ^lay,  J8S8,  under 
bonda,  viz,  the  schooi;er  IV.  P.  Soi/irard.  The  owners  of  the 
other  vessels  (except  the  A<la,  for  which  uo  owner  could  be 
fouud)  considered  that  the  appraisement  was  largely  in  excess 
of  the  value  of  the  vessels. 

To  meet  the  obvious  conchisions  to  be  drawn  from 
the  statements  a])j»eMrin^'  in  these  letters  and  report, 
a  tele<ii'am  was  offered  in  evidence  on  behalf  of  Great 
liritain,  addressed  to  the  lion.  C.  11.  'rnpi)er,  from 
Lieutenant-Ciovernor  Nelson.  <lated  at  Victoria,  July 
20.  1S88.     The  followinu-  is  an  extract  from  the  tcle- 


^'ram: 


R.,  1282, 
29. 


line  The  district  court  of  Alaska  has  refused  bonding  to  the 
owners,  giving  as  reason  application  too  late.  Under  i)reseiit 
circumstances  owners  willing  and  anxious  to  bond  vessels 
for  appraised  values — Anna  Bed;  $2,600;  Dolphin^  $7,7.")0; 


KVIDKNCK VALUE    OF    VKSSKhS. 


313 


•sIlJll    to   the 

t;it('s,  (liiftMl 

(lri\  iliid  Ihl 
tkii  (»iu>  yt'in 
e  nil  iiccoiiiit 
le  meiiiitiiiii. 
iiied  to  bdiiil 
I  tliey  desire 

satisfactory 
silt  sippraised 
leiuentoftlie 
tlie  8ui)rci|K! 

iM-  tVoni  till' 
It  \Vasliin<>- 

of  tlie  lioii- 
Ilis  Excel- 

f'ciTiujr  to  a 
•  ill  relation 

r /■««',  Anna 

3888,  under 
►wners  of  the 
II er  could  be 
i'ely  in  excess 

Iniwii  from 
and  ivijort. 
If  of  Great 
lipor,  tVoiu 
toria,  July 
111  the  tele- 


iding  to  the 
ider  present 
cud  vessels 
hin,  $7,7."jO; 


/„•<('..  Aid,  10 J;  ,W/<(,  .'?2,!l(»0.     P.-iidiii;;'  settlement  of  <|ues- 
tion  liave  sale  i)ostpoiied. 

Tlic  (late  of  this  tele^^raiii  is  Ikd  mouths  jiiior  to  the 
Icttci'  itf  the  I'liitfil  States  marshal  and  fhirc  iiimitlis  ■ 
jirim' \i)  the  lettrr  of  the  Secretary  of  State,  while  the 
rcjiort  of  the  eoiiiinittee  of  the  |»ri\\  eoiincil,  alread\' 
rct'cn'ed  to,  was  approved  ovei'  ten  months  aftrr  this 
tcliii'ram  <{»  the  iniiiister  of  marine  and  fisheries  of 
CaiKida. 

It  is  claimed,  therefore,  that  it  dctes  not  in  any  way 
iirtcct  the  wei<iht  of  the  evidence  pr(»duced  as  to  the 
(xctssiveness  of  the  aj)))raisement,  ami  it  would 
appear  that  if  the  owners  in  .Inly  were  willing'  t<» 
l)(tii(l  the  vessels  at  the  a})praised  value,  they  rec«»n- 
sidcred  the  matter  before  the  date  of  tlie  letter  of  the 
I'uited  States  marshal. 

The    jirincipal    witness    produced   on   the    part   of 
(heat   Britain  as  to  the  value  of  the  euoines  and 
hollers  of  this  vessel  and  of  the  others  registered  in' 
tile  name   of  T.  II.  ( 'ooijer   was  F.  A.  Thomson,  the 
uHicial  iiis})ector  of  hulls  at  the  port  of  Victoria.    Hisii- 
festiiiKdiy  is  based  ujhui  surveys,  not  made  by  the 
witness,  appearing'  in  the  records  of  his  office  for  the 
year  IMS').      He  stated  that  the  eng-ine  of  tht'  A iuki  ^^    g,,,.   j.^^^ 
link  was  sid)staiitially  a  duplicate  of  the  Tlionitoii's,    4. 
which  has  already  been  discussed. 

His  values  are  evidently  uncertain,  as  at  one  place R../J97,  line 
ill  the  Record  he  values  the  machinery  of  the  (irarc 
ill  ISS")  at  >^3,5()()  and  aj^-ain  at  S3, 200,  but  does  not  h.,  looi,  line 
state  whether  that  valuation  is  for  188o  or  l.SSf;.      If    i-- 
rlic  latter  valuation  is  for  1SS5,  it  is  cle;'.rly  contra- 
ilictoi'v  of  his  former  statement,  while  if  it  is  a  valua- 
tion  for  1(S8(!   the    depreciation  of  the  engine  and 

oximatel 


•10. 


line 


ippr 


4p 


stated  that  the  TliorntotPsi  niaeliinery  could  be  sold 
iithr  five  years'  usino-  at  but  7i  percent  off  its  original 
\  II  hie.      These    statements  of    Thomson   are    much 


R.,  99(),  line 
62. 


314 


EVIDENCE — VALUE    OF    VESSELS. 


at  variance  with  tliose  of  Andrew  Gray,  inspector  of 
boilers  in  1882.  The  hitter  witness  stated  that  ma- 
chinery kept  in  jj^ood  running-  order  wouhl  depreciate 

^40*^*^'^^°*^  per  cent  a  year,  and  that  he  had  sometimes  seen 
second-hand  machinery  ^o  at  one-fourth  of  its  cost. 
He  added,  "It  is  liard  lo  phice  a  vahie  on  secoud- 

R.,  iu20,  line  hand  machinery."  All  the  other  witnesses,  excepting 
^^'  Gray,  who  are  ])roduced  as  experts  on  the  machiiien 

base  their  opinions  on  the  descriptions  given  by  Mr. 
Thomson,  wliicli  were  shown  to  be  incomplete. 


GRACE   AND  DOLPHIN. 


App.     B,    p, 
114. 


App.      B,  p. 
116. 


K.,  1030,  line 

13. 
R.,  1030,  line 

23. 
R.,  100!),  line 

3. 

R.,  951,   line 
1. 

R., '113(1,  line 

8. 
R.,  113.-.,  line 

12. 


i;.,  1010,  line 

35. 
R..  1012,  line 

0. 
R.,  1»7}».   line 

31. 

R.,  970,   line 
(50. 


The  Grace  and  Dolphin  were  built  at  Victoria;  the 
former  in  1881  and  the  latter  in  1882.  Accord- 
ing" to  the  transcri})t  of  register,  the  l)olph'in\'i  lenf>th 
was  77  feet,  beam,  22.7  feet,  depth  of  hold,  7.5  feet. 
and  registered  tonnage,  60.10.  The  lengtii  of  tne 
Grace,  according  to  her  register,  was  7<).r)  ieet,  beam, 
23.4  feet,  depth  of  hold,  8  feet,  and  registered  t(m- 
nage,  70.87. 

The  Dolphin  appears  by  the  testimony  to  have 
been  built  of  better  material  than  the  Grace;  the  lat- 
ter being  constructed  chiefly  of  Douglas  fir,  wliile 
the  former  had  yellow  cedar  and  oak  as  })art  of  her 
material. 

J.  D.  Warren,  who  had  the  vc-^*  Is  built,  testified 
that  the  Grace  cost  ''about  >^1(),000,"'  while  the  Ihl- 
phin  cost  "something  ovcm'  >s16,0()()."  In  giving  tli'-'se 
amounts  ire  included  the  engiiu's  complete.  All  the 
evidence  submitted  oil  beiialf  of  (ireat  Britain  a.< 
to  the  \alue  of  these  vessels  is  ba.sed  upon  what  /7 
iroii/d  rn.st  fo  hiiilil  them.  S.  Mc( '.  Smitli  estimated 
that  tlu^  Dolphin  would  cost  8!), TOO  when  launched, 
and  the  (uwi  S10,000. 

Walter  Walker,  who  also  based  his  valnation  uijoii 
the  cost  of  construction,  stated  the  Grace  was  worth 
"in  the  neighborhood  (.f  sl2,0()0,"  and  that  in  1HS7 
she  was  worth  about  ^13,000  or  ^14,000. 


EVIDENCE — VALUE    OF    VESSELS. 


315 


Ricliard  Bennett,  another  journeyman  sliij,  i  arpen-  ^■^^^^'  ''°® 
Iter,  stated  that  the  Grace,   he   "should  think,  cost 
between  $12,000  and  S13,000"  complete,  and  that  the  r.,  1037,  line 
MpJi'ni  he  "should  suppose  would  be  worth  $2,000    ^^" 
more."     In  answer  to  a  (piestion  by  one  of  the  Com- 
missioners, he  stated  that  his  valuation  meant  the  cost 
oftlu'  vessel. 

(ioorge  W.  Cavin  reached  a  valuation  upon  tlie '^'j-.j^yS' ^^o, 
Dolphin  o\  "about  822,000  or  $23,000  with  lier  ma- 
cliiiR'ry  in,"  and  upon  the  Grace  oH  "about  $18,000  or  r.,  1032,  line 
$20,000."  20. 

Orlando  Warner  gave  his  valuation  of  the  Dolph'nt ^   ^q^  1,.,^ 
as  about  $9,000,  exclusive  of  machinery,  basing-  his    t2. 
valuation,  as  usual,  upon  the  cost  of  construction. 

Which  of  the  two  vessels  was  the  more  valuable  is  ^33^*^^^'  ''°® 
iiiiccitain.  AVe  have  James  D.  Warren,  agent  of  the 
owner,  giving  the  cost  of  each  at  about  the  same 
aiiioimt,  and  Orlando  Warner  stating  that  the  ves- 
sels were  of  abf>ut  equal  value,  while  S.  McC  Smith 
places  a  higlier  valuation  upon  the  Grace,  and  the 
witnesses  Cavin  and  Bennett  place  a  liigher  valu- 
ation iij)on  t](0  Dolphin.  The  a})j)raisement  of  these  R..12H2,  line 
twd  vessels  at  Sitka,  with  tlieir  furniture,  outfit,  and 
st(.res,  was,  t]>e  Dolphin,  $7,7i)0;  the  Grace,  $10,404. 


ADA. 


The  A(hi,  seized  August  2'),  1S,S7,  had  Iter  p(»rt  of  ^-J^^-  ""« 
m</\\\  at  Yokohama,  Ja))an.  She  was  built  in  1.SS2, 
the  tVanu'  being  coiistructe*!  of  kieki  wood,  while  hei- 
planking  was  of  Oregon  pine.  According  to  her 
register  she  was  TA  feet  long,  21  feet  beam,  and  S 
tcct  depth  <»f  hold,  with  a  registered  tonnage  of  fir).23. 

( '.  A.  Lundberg,  one  of  the  j)ersonal  chiini:n<t<  be- 
toi'e    the  ( V)nimissioners,    stated    that    lier    hull   and  k..  1210,  iiu.^ 
spars  actually  cost  >>;'), 500,  while  the  balance  of  tlie|{''"7>^j   ,i„„ 
•  mttitting  of  the  vessel  was  $2,000.  ^  •:<■ 

I'Vom  further  examination  of  the  Record  this  state-  '15.  ''' 


316 


EVIDENCE VALUE    OF    VESSELS. 


:*\ 


;'C« 


App.    IV 
1M3. 


App.    r. 

184. 


K..  123!t, 

58. 


inent  of  the  mate  of  rlic  ^i(l<t  must  be  accepted  witli 
caution,  as  it  a[)pear.s  that  in  xVpril,  iSSd,  when  the 
vessel  was  four  \ears  ohl,  twenty-isne  siiares  <»f  the 
p.  schooner,  and  one-third  of  tiie  intei'est  in  her  hoats, 
li'uns,  annnunition,  and  small  arms  veiti  ti'ansfcnvil 
by  White,  then  the  sole  owner,  to  '  I  ,-<\  '■■■■■:  ^l,38iJ.;i'). 
The  followinii"  vear  the  vessel  was  '<     mj-  nt  to  Victoriii. 

.  p.. I.  J.  Gray,  <m  the  3()th  of  Mandi,  1887,  jjurchaswl 
twenty-two  more  shares  of  t\w.A((a,  the  consideration 
in  the' bill  of  sale  beinj^-  stated  as  s2,-i6.S.40. 

line  The  testimony  of  Gray  dis(doses  that  the  actual 
lU'ice  he  })ai(l  for  the  third  he  last  pundiased  was 
!Sl, 333.33,  besides  which,  and  included  in  the  con- 
sideration meuti(med  in  the  bill  of  sale,  was  tliu 
cost  of  repairing'  and  jjreparing-  the  Ada  for  her  trans- 
pacific voyage  to  X'ictoria.  It  would  ajjpear  from 
this  that  one-third  of  the  vessel  was  sold  in  the  sprin*^' 
of  1887  at  the  rate  of  84,000  (Mexican),  at  Sh-.w^- 
hai;  and  Gray  further  testified  that  it  cost  U  hvMwi 
the  vessel  across  the   Pacific  "about  $200  k:,.- ■'i:^, 

''"*'may  be,  running-  ex])enses  and  wag'es  of  th>  '*  •<■  '" 
(Soon  after  she  arrived,  which  was  in  the  earb  iil 
of  Ai)ril,  C-antain  Siewerd,  whose  (<ii:iliiication8   li-i 

!{.,  12l'(),  line    i       •  i  i     i  ill  T 

25.  placing'  a  value  upon  vessels  liave  ah'eady  been  dis- 

cus.sedin  this  Arg'ument,  made  Grav  an  ofier  of  ss,0()(l 
^'"^n•  S9,000  for  the  Ada.  The  offer"  included  her  scal- 
ing' outfit,  excepting'  some  provisions. 
ii'«e  Ca])tain  Siewerd  stated  that  in  the  autumn  the  Ada 
would,  inclndiiig  depreciation,  have  been  w  -Mi  to  liiin 
^1,800  less  than  \\v  ofi'ered  in  the  sprih  .  As  her 
voyage  had  been  completed  before  she  wa--  •:  >:r;'<l"'l 
by  the  officers  of  the  United  States,  even  a"(eptin|i' 
this  offer  of  Captain  fSicwerd'vuis  evidence  of  her  value, 
she  would  have  been  wo.-tii  in  the  neighborhood  of 

$(;,soo. 

J.  I).  Warren,  who    acted   on  behalf   of   the  own- 
ers of  the  A<l(i,  made  a  declaration  at  Ottawa  for  the 


}{.,  1237 
14. 


R.,  1242, 
15. 


R..  1241. 
54. 


EVIDENCE VALUE    OF    VESSELS. 


317 


X'  accepted  witli 
I'^^N^',  wlu'ii  the 
U'  sliares  of  t\w 
t'st  in  her  boats, 
\<.'.'<'  trail sf'crivd 
'■  -' ^I33:i.^l\. 
'"J-itttoVictoriii, 
^H7,  j)iirclia(se(l 
Ik*  consideration 
.•{6-S.4(). 

that  tilt  actual 
purchased  was 
(led  in  the  con- 
t"  sale,  was  the 
(/(I  tor  her  trans- 
Id  aj)pear  from 
old  ill  the  .spriiijr 
ieaii),  at  Shsiiifj^ 

it  cost  tf     !>l)iir 

t  mi)  o/;t:.^' 

•S  of   the  V;':*-^.'!" 

II  the  ear)  Mt 
'i:ilIticatioiis  ^ ., 
ready  been  dis- 
II  offer  of  SS, ()()() 
•bided  her  seal- 

mtiiinn  the.b/rt 
en  \\v  ■■'^h  to  Iiiiii 
|»ni:  .  As  iier 
!k'  was  <:o;!r(K^(l 
even  a"cej;tiii<r 
ice  of  her  value, 
CMg'hliorhood  of 

It'   of  the  owu- 
<  Ottawa  for  the 


purpose  of  [)reseutiii<i;'  the  claim  of  tlie  vessel  to  the 
ruitcil  States,  in  wliicb  is  the  following-  statement: 

The  value  placed  on  the  Ada  by  ber  said  owner  at  tbetiiiicR.,  i263,  Hue 
I  fli  the  seizure,  viz.,  $7,000,  is  a  fair  and  reasonable  value  for    i'-^- 
the  Ada  wben  seized. 

bi  his  cross-examination  in  regard  to  this  valuation, 
(b'i»\'s  testinumy  is  as  follows: 

Q.  \:he  question  is,  Mr.  Gray,  was  your  estimate  of  tbe  K.,  123«,  line 
Ada  $7, (too  J  a7. 

A.  That  I  could  iimJIy  tell. 

(}.  What  is  your  best  Judgir.ant  about  it;  was  that  your 
estimate  of  the  value  of  tlie  Ada  i)resented  against  the  Gov- 
erninent? 

A.  About  $7,000;  $7,000  or  $8,000;  something  of  that 
sort. 


Tile  claim 


is  made  in  the  Argument  on  belialf  ofSr..ArK.,  128, 
Giviit  Britain,  that  the  value  of  the  Ada  was  $J),00O, 
oy/iiHij  $lfi(H)  more  than  the  owner  claimed  in  1SH7. 

The  onl}'  witnesses  jiroduced  on  behalf  of  tlie 
(laiinant  in  sup})ort  of  this  claim  are  James  Gaudin, 
master  of  scbooner,  wlio  stated  she  was  the  best  seal- 
iuji  vessel  in  Victoria,  and  R.  Collister,  who  said  that 
she  was  "worth  fully  iifi9,()00,"  basing-  his  opinion ^^  1313,  Hue 
u])on  the  knowledge  which  he  possessed  of  the  value 
(if  ships  and  the  cost  of  shipbuilding'  in  the  port  of 
Victoria  in  1887.  The  competency  of  these  wit- 
nesses to  g^ive  an  opinion  as  to  the  Ada's  valuation  or 
superiority  has  been  heretofore  discussed. 

Two  witnesses  arei)roduced  on  behalf  of  the  United 
States  as  to  the  value  of  the  Ada.  Captain  Raynor, 
\vh(i,  as  captain  of  the  AUie  I.  Alger,  was  seized  on 
the  same  day  as  the  vessel  in  question,  accompanied 
her  to  Unalaska,  and  was  ])resent  at  her  trial  in  Sitka, 
stated  that  the  Ada  was  worth  on  the  market  at  Vic- 
toiin  in  the  fall  of  the  year  1887  about  86,000,  "•i(;252,  Hue 
ivaciiing-  this  valuation  upon  his  knowledj^e  of  the 
United  States  markets,  with  10  per  cent  added  for 
the  Canadian  customs  duties. 


I 


318 


EVIDENCE — VALUE    OF   VESSELS. 


^^•'  1264,  line  Capt.  Alexander  McLean  gave  his  opinion  that  tlie 
market  vahie  <>f'  tlie  Ada  in  Victoria  in  1887  was  about 
$(),500,  from  which  nmst  be  deducted  the  '/ear  and 
tear  for  a  full  season,  having  been  seized  August  25. 
Tlie  United  States  claim  that,  for  the  vessels  seized 
and  condennied,  owned  b}'  perscnis  in  whose  belialt 
Great  Britain  is  entitled  to  claim  compensation  from 
the  United  States,  they  are  liable  to  pay  the  market 
value  of  such  vessels  at  the  port  of  Victoria  at  the  time 
of  their  seizure. 


I :  ry&%isp.} 


ion  that  the 
7  was  about 
e  '/ear  and 
August  25. 

essels  seized 
hose  belialf 

isation  from 
the  market 

I  at  the  time 


PERSONAL   CLAIMS  OF   CAPTAINS  AND  MATES. 

The  persimal  claims  submitted  by  the  Convention 
(if  February  8,  1.S96,  to  this  Ili^-h  Commission  are 
till'  claims  submitted  to  the  Tril)unal  of  Arbitration 
lit  Paris,  lietween  pa<>es  1  to  60,  inclusive,  of  the  case 
(if  (beat  ]^ritaiu  as  filed  before  that  Tribunal : 

These  claims  are: 

Personal  claimn. 


Claimed  by— 


For— 


Amount 
cliiimed. 


D.iviil  Monroe.  iimHter  of  Onward 

Maiuotiili.  mate  of  Onward ; do 

ll.'iiis  (iiitlomiHen,  maRtcr  of  Thornton ' do 

Han  v  Norman,  mate  of  Thornton do 

.laini's  (Ijiilvif,  maHter  of  Carolena do 

Jaiiirs  Itlack,  mate  of  Carolena i do 


1886. 
I1le;<;al  arrest  auil  iniprlHoiinient 


||I4. 000 
2,500 
4,(100 
2,  5U0 
2, 500 
2,500 


Total  for  1886. 


18, 000 


I 


1887. 


Wancn.  masterof  Dolphin |  SutteringHaiid  lo«8e«:  Navi^ja- 

I      ling  four  vessels  from  Cna- 
j      laska  to  Sitka. 

'Iiilin  Iteilly.  mate  of  Dolphin Siitt'eriugs  and  losses 

(icorj.'!)  r.  Ferey,  masterof  \V.  P.  Sa.yward.! do , 

A.  II.  I.aing,  mate  i>f  W.  1*.  Sayward do , 

l.oiiis  Olxen,  masterof  Anna  Bcek do , 

Miiliail  Keefe,  mate  of  Anna  Beok t do 

Vt'.  Petit,  master  of  (Iraoe ■ do 

('.  ■\.  Liindberg,  mate  of  Ada \ do 

Total  for  1887 ...   


2, 635 


1,000 
2,000 
1,000 
2,000 
1,000 
2,000 
2,000 


Total  for  1886  and  1887. 


13, 635 
"49,635 


Xo  other  claims  for  personal  damajj^es  were  sub- 
mitted to  this  Wiffh  Commission  by  the  Convention, 
iiii<l  no  sum  can  be  awarded  to  any  claimant  whose 
I'liiim  is   not  set  out  and  included  in  the  schedule 


iibdve  given. 


i 


n 


319 


320  PERSONAL    CLAIMS    OK    CAPTAINS    AND    MATES. 

Tlie  United  States  took  this  position  early  in  tlie,se 
proceedinj^s,  and  moved  the  High  Commission  to  dis- 
miss  from  consideration  the  personal  claim  of  James 
Gaudin,  for  the  reason  that  it  was  not  embraced  in 
the  schedule  of  the  British  case,  between  pages  1  tn 
60,  as  presented  to  the  Tribunal  of  Arbitration  at 
Paris;  was  not  referred  to  in  article  9  of  the  award 
of  that  tribunal;  was  not  embraced  in  the  Conven- 
tion between  the  United  States  and  Great  Britain,  of 
February,  1896;  that  it  did  not  arise  by  virtue  of  the 
treaty  of  1892,  or  of  the  award  and  findinos  of 
the  Tribunal  of  Arbitration  at  Paris;  and  is  not  an 
additional  claim  specified  in  the  fifth  paragraj)!!  of 
the  ])reamble  to  the  Convention  of  1896. 

All  personal  claims  other  than  those  named  in  the 
above  schedule  nuist  be  dismissed  from  the  consid- 
eration of  the  High  Commissioners,  and  no  damages 
can  be  awarded  the  claimants. 

The  schedule  discloses  that  no  claim  was  made  before 
the  Tribunal  of  Arbitration  at  Paris  for  damages  aris- 
ing from  the  illegal  arrest  and  imprisonment  of  the 
mate  of  the  Grace. 

A  claim  is  made  for  damages  suffered  by  the  mate 
of  the  Grace  in  the  schedule  of  the  claim  of  that  ves- 
sel in  the  British  Argument.  This  claim  undoubtedly 
was  made  by  error.  The  testimony  did  not  establisli 
that  there  was  any  mate  of  the  Grace  at  Sitka  who  was 
treated  by  the  authorities  of  the  United  States  as  the 
mate,  and  there  is  no  evidence  that  he  was  detained  at 
Sitka  under  the  same  conditions  as  the  other  captains 
and  mates. 

All  claims  for  the  sufferings  and  hardsliij)s  of  the 
members  of  the  crews  of  the  various  vessels  which 
are  not  specified  in  the  table  taken  from  the  Britisli 
case,  as  jjresented  to  the  Tribunal  of  Arbitration  at 
Paris,  are  personal  claims,  and  by  the  terms  of  the 
Convention  are  excluded  from  the  consideration  and 
jurisdiction  of  this    High   Commission.     Under  all 


PERSONAL  CLAIMS  OF  CAPTAINS  AND  MATES, 


321 


iiitciiiMtional  coinmissioiis  re(|uirc'(l  to  liiid  tlio  aiiiouut 
of  (liiui;i<>e.s  for  e;u'li  ])ers<»n,  the  cliiiuiuiits,  members 
(if  the  crews  of  various  vessels,  liave  been  uniformly 
i(M|uire(l  to  present  claims  for  (liima<^-esan(l  suffering's 
scpiirately;  and  unless  such  claims  were  ])resente(l, 
their  consideration  has  been  held  to  be  beycmd  the 
juilsdiction  of  the  Conunissictn.  The  persoiial  claims 
iiiiuU*  on  behalf  of  the  meml)ers  of  the  crews  of 
vinious  vessels  in  the  Ikitish  Aruument  for  the  first 
time  were  not  presented  to  the  Tribunal  of  Arbitra- 
tidii  at  Paris,  and  no  such  claims  were  ever  presented 
t(i  the  United  States. 

The  claims  set  out  in  the  schedule  al)Ove,  which 
wore  presented  to  the  Tribunal  of  Arbitration  at  Paris, 
lire  all  for  dama<>'es  arisiny-  bv  reason  of  "illegal  arrest 
and  im[)risonment,"  and  "suffering's  and  losses,"  with 
the  exception  of  the  claim  of  Cai)tain  Warren,  master 
nf  the  Dolpliin,  "navigating  four  vessels  from  Una- 
liiska  to  Sitka." 

Counsel  for  Great  Britain  stated: 

What  I  want  to  refer  to  is  this:  The  personal  claims  that  il.,  1201,  line 
were  esi)ecial]y  placed  before  the  Paris  Tribunal  for  188G  and  ''*'• 
1SS7  stand  on  a  ditterent  basis  altogether.  In  188G  all  the 
ciiptuins  wei'e  actually  arrested,  convicted,  and  imiirisoned, 
1111(1  for  that  tliey  put  a  claim  in,  and  you  may  have  noticed 
tliiit  we  have  been  particular  not  to  go  into  the  details  of  what 
the  captains  lost  in  the  way  of  wages,  bnt  to  claim  under  the 
j;eueral  loss  of  the  venture.  The  (-laims  were  put  in  for  ille- 
Kiil  arrest  and  imprisonment  of  the  captains  and  for  such  an 
iiinount  as  this  court,  actiuff  in  the  place  of  a  Jury,  if  yon 
will,  would  give  to  a  person  illegally  arrested  and  imprisoned. 
Tlie  same  with  the  cases  of  1887,  wliere  the  personal  liberty 
i»r  the  captain  and  mate  was  to  a  certain  extent  interfered 
witli.  The  amount  and  extent  is  a  matter  of  degree,  but  we 
put  tliat  forward  on  a  different  basis  altogether,  and  it  has 
ahvn,\  s  been  so  done.  AVe  have  not  attempted  in  this  case 
U  holster  up  or  enlarge  the  case  of  any  particular  captain 
oil  account  of  loss  of  wages,  or  anything  of  that  kind. 

I'rom  the  nature  of  the  (daims  made  at  Paris,  and 
the  statement  of  counsel,  these  claims  are  to  be  con- 
sidered by  the  High   Commissioners  as  claims  for 
B  s 21 


i 


322 


PERSONAL    CLAIMS    OF    CAPTAINS    AND    MATES. 


It.,  114G,  liiw 
28. 


dainaj^vs  arisiii<>-  by  reason  of  tlie  alleged  illegal  arrej*! 
and  iniprisomnent  of  llie  ('a})taiiis  and  mates  of  tlic 
schooners  seized  in  the  years  l.SSd  and  1887. 

The  testimony  establishes  that  in  the  year  I88fia 
charg'e  -was  made  against  the  captains  and  mates  for 
violation  of  the  municipal  huvs  of  the  United  States, 
l)rohibitin<>'  the  taking  of  fur  seals  in  the  waters  of 
Bering-  Sea.  After  reaching  Sitka  the  testimony 
conclusively  establishes  that  the  men  were  never 
restrained  of  their  liberty,  except  that  they  were  com- 
pelled to  remain  in  Sitka;  that  they  could  go  and  come 
as  they  chose,  and  that,  as  a  matter  of  fact,  the  iiien 
did  have  complete  control  oH  their  own  movements  in 
Sitka.  They  were  brought  before  the  court  and  sen- 
tenced, but  i)rior  to  the  sentence  they  were  not 
restrained  in  any  place  under  lock  and  key.  A 
g-uard  was  never  ])laced  over  them,  and  they  were 
never,  at  ain'  time,  in  jail.  One  of  the  jury  rooms 
in  the  court-house  at  Sitka  was  set  aside  for  their  use. 
This  room  was  large  find  comfortable.  They  were 
provided  with  food  regularly  by  the  marshal,  and 
could,  during  the  day  and  during  the  night,  if  diey 
so  wished,  occupy  themselves  about  Sitka  at  their 
own  will.  After  tho  sentence  of  the  court  thev  were 
restrained  of  their  liberty  by  being  compelled  to 
remain  in  Sitka.  They  could  go  out  of  the  room 
provided  for  them  at  any  time  the}'  desired;  no  guard 
was  placed  over  them,  and  the  room  in  which  they 
remained  throughout  the  day  and  in  which  they  slept 
at  night  was  never  locked  against  their  exit. 

In  the  year  1887  no  formal  charge  was  ever  pre- 
ferred against  the  masters  and  mates.  They  were 
never  detained  or  restrained  in  any  way,  save  that 
they  were  compelled  to  stay  in  Sitka  imtil  the  9th  day 
of  Septend)er,  when  Capt.  James  1).  Warren  says: 

Q.  September  9  we  were  all  called  in  and  released,  aud 
are  getting  ready  to  go  to  Victoria  [reading  from  a  book]. 
Is  that  correct?  * 


PERSONAL   CLAIMS    OF    CAPTAINS   AND    MATES. 


323 


iO. 


A.  Yes. 

().  To  wliom  does  the  word  "we"  refer? 
A.  Tliat  meaus  all  of  us  masters  and  mates  that  were 
l)Ouiid  over  to  appear  at  court. 
().  The  masters  aud  mates  of  these  four  schooners? 
A.  Yes. 

.loliii  Keilly,  of  the  l)o/p/ihi,  wat<  emjiloyod  by  the 
Uiiitt'd  States  marshal,  while  he  was  at  Sitka,  to  make 
tilt'  tri))  on  the  Grace  to  Unalaska,  as  mate,  when  she 
WHS  cliartered  by  the  United  States  marshal.  R.^^1195,  line 

W.  Petit,  master  of  the  Grace,  was  employed  b}' 
tlic  United  States  marshal  to  act  as  ca])tain  of  the  R  ,  1165,  li'ie 
(inice  on  this  trip  to  Unalaska. 

Hoth  Petit  and  Reilly  have  personal  claims  for 
iiiil)risomnent,  suffering",  and  loss,  and  the  'estimony 
shows  that  not  only  were  they  not  restrained  of  their 
lilxity,  but  that  they  were  actually  employed,  de- 
piirti'd  from  Sitka,  aud  i)aid  for  the  services  ])erformed. 

Andrew  I),  Laing,  mate  of  the  Saifivard,  while  he 
Wiis  inqmsoncd,  made  a  trip  to  Victoria,  remaining- 
inviiy  from  Sitka  until  a  few  days  prior  to  the  time 
that  lie  finally  departed  for  home. 

Tlie  only  testimony  adduced  on  behalf  of  the  daini- 
anls  relative  to  the  detention  of  the  masters  and  mates 
hi  18S6  was  that  of  one  Marketich,  avIio  was  the  first 
witness  sworn  before  this  High  Connnission,  and 
wh(  )se  testimony  needs  no  connnent.  'riiis  person  was 
iji'iKtrant,  unable  to  speak  the  English  language  intel- 
liiiently,  and  absolutely  unworth}'  of  credence.  He 
ah  me,  of  all  the  witnesses  who  were  j)roduced,  gave 
ti'stimony  that  the  mates  and  captains  at  Sitka,  in  the 
year  188G,  were  treated  in  a  manner,  by  the  judge 
lit'  the  court  of  the  United  States  in  the  Territory  of 
Ahtska,  not  becoming  a  judge  of  one  of  the  courts  of 
the  United  States.  He  says  that  the  judge  called  R-^^  74,  line 
them  "robbers."  This  testimony  is  directly  coutra- 
ih'cted,  and  was  never,  throughout  the  entire  Record, 
suhstantiated  by  the  testimony  of  any  other  witness. 

Marketich  also,  iu  answer  to  a  question  put  by  the 


25. 


324 


PERSONAL    CLAIMS    OF    CAPTAINS    AND    MATKS. 


54. 
E.,71 


Coniinissioncr  on  tlio  ])art  of  Iler  i\[ajo.sty,  said  tliat 
the  room  iii  wliieli  all  the  masters  and  mates  slept 
was  only  10  by  12  feet  in  size.  On  cross-examina- 
tion this  witness  said : 

Q.  Ami  the  room  where  you  slejtt  in,  or  were  confined  in, 
was  a  room  Just  over  the  judge's  room  ? 
A.  Yes,  sir. 
(}.  The  jury  room? 
A.  Yes,  sir. 

'^riiis  room,  it  was  afterwards  established  by  the 
R.^  500,  linetestinujny,  was  "a1)ont  30  to  35  feet  long-  by  about 
15  feet  wide." 

The  testimon}'  of  Marketich  is  brief  No  weight 
was  given  the  story  by  tliose  who  heard  the  wituess 
at  Victoria. 

Capt.  (Jharles  H  llaynor  was  examined  fully  and 
in  detail  relative  to  the  treatment  of  the  captains  and 
mates  at  Sitka  in  1886  by  rlie  authorities  of  the  United 
States.  The  testimony  of  this  witness  bearing  ou 
this  subject  was  never  denied  or  contradicted  in  any 
of  its  details,  and  throughout  the  session  of  this  Iligli 
Connnission  at  Victoria  the  account,  as  given  by  Cap- 
tain Ravnor,  of  the  occurrences  at  Sitka  Avas  taken  as 
the  true  history.  Every  witness  Avho  testified  there- 
after, relative  to  this  feature  of  the  claims,  confirmed 
in  some  of  its  details  the  statement  of  Captain  Raynor, 
and  denied  it  in  none. 
_  Captain  Raynor  stated  that  the  captains  and  mates 

were  not  confined  at  Unalaska  prior  to  the  time  that 
they  were  taken  to  Sitka  on  the  revenue  cutter  Cor- 
ivin;  that  he  had  seen  Captain  Ogilvio  and  the  mate 
Blake,  of  the  Carolcna,  ashore,  and  that  no  orders 
were  given  that  they  should  remain  ou  board  their 
vessels. 

E..  496,  line     Q.  After  you  got  to  Sitka,  Captain  Kayuor,  what  steps 
^^'  were  taken  by  the  officers  in  regard  to  your  arrest  aud 

detention'? 


E.,  496,   line 


PERSONAL    CLAIMS    OF    CAPTAINS    AND    MATES. 


325 


y,  said  tliat 
mates  slept 
ss-oxaiuiiia- 

e  confined  in, 


lied  by  the 
ij^-  by  about 

No  weiglit 
tbe  witness 

id  fully  and 
•aptaiiis  and 
f  the  United 
bearing-  on 
dieted  ill  any 
3f  this  liigli 
ven  by  Caj)- 
was  taken  as 
stifled  thero- 
s,  confirmed 
tain  Raynoi', 

IS  and  mates 
he  time  that 
3  cutter  Cor- 
nd  the  mate 
it  no  orders 
board  their 


•r,  what  steps 
ar  arrest  aud 


A.  Well,  they  told  us  that  we  could  consider  ourselves 
uiidcf  arrest. 

(^>.  Were  you  bound  over  to  a])|»ear? 

A.  W'v.  were  bound  over  on  our  own  reco^iiiizance. 

(,t.  And  were  you  {;iven  your  liberty  during  the  interval? 

A.  Ves,  sir. 

(,).  Did  you  take  advantage  of  that  liberty? 

A.  We  did.  At  least  for  ii  few  days  everybody  went 
aioiiiid.  We  were  on  our  own  recognizance,  and  they  went 
tor  lour  or  live  days  and  then  surrendered  it,  and  then  they 
let  us  go  around  Just  the  same,  anyway, 

(.>.  WHiat  was  the  object  of  their  surrendering  their 
recognizance? 

A.  Well,  because  ire  throuffht  it  ican  easier  to  (/o  and  eat  and 
kIicj)  ill  the  Jury  room  than  it  n-as  to  ijo  on  board  the  vesucls. 

().  And  before  they  surrendered  their  bail  they  had  lived 
on  hoard  their  vessels,  had  they? 

A.  Ves,  sir. 

(f.  That  includes  Captain  Ogilvie  and  Mate  IJlake? 

A.  Yes,  sir. 

^>.  And,  so  far  as  you  know,  the  oilicers  of  the  other  shi])8 
tliiit  were  there? 

A.  Yes,  sir. 

().  These  ships  were  the  Thornton  and  tlie  Onward? 

A.  Ves,  sir. 

().  Were  they  compelled  to  sleep  in  that  room,  or  to  remain 
tlicre — that  is,  before  the  trial  we  are  talking  of  Jiow? 

A.  Xo,  sir;  they  could  have  gone  on  board  the  vessel  and 
slept  on  board  her,  or  whatever  they  liked. 

Q.  The  fact  is  that  they  actually  selected  this  place  to 
sleep  in  preference  to  the  vessel? 

A.  Ves,  sir. 

(i.  Durintj  the  day  they  were  confined  tcithin  the  limits  of 
tiiv  ctnirthonsef 

A.  Not  af  all. 

<i>.  After  the  arrival  of  the  captains  and  mates  of  the  Thorn-  R.,  498,  line 
ion  aud  Onward,  were  they  complained  against  formally?         ^^• 

A,  Yes,  sir;  they  were. 

().  Were  they  arrested  in  the  same  manner  that  you  were? 

A.  Yes,  sir;  they  were. 

().  Were  they  restrained  of  their  liberty  in  any  way  np  to  the 
time  of  their  trial? 

A.  Xo,  sir. 

*»>.  Now,  just  tell  the  Commissioners  about  where  the  mates 
aiiil  captains  slept  at  Sitka  before  they  went  to  the  jury 
roiiin.    I  believe  the  Carolena,  the  Onward,  a,\u\  Thornton 


326 


PERSONAL  CLAIMS  OF  CAPTAINS  AND  MATES. 


were  left  at  I'lialaska,  so  prior  to  the  time  they  went  to  the 
jury  room  where  did  these  men  sleep  1 

A.  They  slept  aboard  the  San  Dieyo. 

Q.  That  is  your  boat? 

A.  Yes,  sir. 

il.  Did  tl'ey  have  their  own  bedding? 

A.  Yes,  sir. 

(^.  And  about  how  long  did  they  stay  on  the  San  Dieijo 
before  they  decided  to  go  into  the  Jury  room  and  sleep? 

A.  I  think  it  was  tliree  days. 

Q.  When  they  surrendered  their  personal  bail  and  asked 
to  be  allowed  to  sleep  at  the  Jail,  did  the"? 

A.  Yes,  sir. 

(^  Now,  is  that  Just  the  way  the  th  -curred,  or  were 

they  compelled  to  go  to  the  Jury  room  ^„.     oieep? 

A.  No,  sir;  that  is  Just  the  way  the  thing  occurred;  they 
done  it  of  their  own  self;  asked  the  marshal  to  let  them 
sleep  there  and  also  eat  there. 

{}.  And  he  comi>lied  with  their  request  f 

A.  Yes,  sir. 

Q.  It  was  a  step  taken  for  their  personal  comfort,  was  it? 

A.  Yes,  sir.  They  done  it  because  they  did  not  like— of 
course  the  San  Dictjo  was  anchored  some  ways  offshore— 
and  they  didn't  like  to  pull  back  and  forth  aboard  of  her  to 
get  their  njeals  and  sleep.  1  aluo  done  it  myself  on  the  same 
account, 

Q.  AVhen  they  went  into  the  Jury  room  did  they  take  the 
same  bedding  that  they  brought  off  their  respective  boats  off 
the  San  Dieijo^ 

A.  They  did;  ye?  sir. 

Q.  And  during  the  time  thai,  they  slept  in  the  Jury  room 
did  they  make  use  of  this  bedding? 

A.  Yes,  sir;  all  the  time. 

Q.  Was  there  any  abuse  on  tl  e  part  of  any  Federal  officer 
there  I 

A.  I  never  seen  any  nor  evei  heard  tell  of  any. 

Captain  Rayiior  tlieii  said  that  tliorc  was  no  com- 
plaint about  the  food  that  the  men  were  siip})Ueil 
with. 

E.,  500,  line     Q.  Were  there  any  com{)laints  made  by  any  of  the  mates 
43.  or  captains  as  to  the  manner  in  which  they  were  treated 

there? 
A.  No,  sir. 

(^.  Or  the  words  that  were  used  in  reference  to  them? 
A.  No,  sir;  I  never  heard  of  them. 


PERSONAL    CLAIMS    OF    CAPTAINS    AND    MATES. 


327 


went  to  the 


0  San  J)i€(io 
il  sleep/ 

lil  and  asked 


ired,  or  were 

i!urred;  they 
to  let  tliem 


ut'ort,  wasit? 
not  like — of 
i^s  offshore— 
iird  of  her  to 
y  on  the  same 

hey  take  the 
itive  boats  off 


he  jury  room 
'ederal  officer 

•^as  110  coni- 
re  supplied 

of  the  mates 
were  treated 

to  them  ? 


{).  Did  you  httir  the  word  ^^robbers^^  lined  in  the  charge  of  the 
idiirt ! 
A.  /  did  not;  no  such  tcord. 

Tlio  ('{iptaiiiH  and  nuites  were  tlien  tried  by  the 

court. 

(,t.  What  liberty  did  they  have? 

A.  Well,  they  could  go  all  over  the  top  of  the  court-house, 
ill  tlic  court  room,  and  all  around  out  around  the  porch,  down 
ill  till'  yard,  in  fact  anywheres  in  Sitka,  by  going  and  asking 
permission  of  the  marshal. 

(}.  Did  you  crvr  see  any  of  these  men  outside  of  the  Jury 
roiini,  or  away  from  the  immediate  vicinity  of  the  eourt-honse 
ilurinn  this  time  of  confinement  after  that  first  sentenced 

A.   Yes,  sir. 

(}.  Where  did  yon  see  them* 

A.  ^VeU,  1  hare  seen  them  ont  in  the  street  around  Sitka  and 
ill  different  stores;  I  couldn't  give  the  name  of  the  stores — 
wlio  kcjit  them. 

(j>.  Did  yon  yourself  go  out  during  that  timet 

A.  I  did;  yes. 

().  Were  any  of  you  locked  in  or  guarded  during  that 
tiiiio ". 

A.  Well,  there  was  none  of  us  locked  in  at  all;  they  had 
iniiiiii  up  there  for  a  few  days  who  was  supposed  to  be  a 
;,niiird,  but  he  never  stopped  us  from  going  anywheres  that 
we  wanted  to. 

(}.  After  the  fifteen  days  elapsed  which  you  speak  of  as 
being  the  time  you  believed  the  other  mates  and  captains 
served,  tell  us  what  occurred;  liow  t^ey  were  released? 

A.  Well,  the  marslial  released  them,  and  they  went  right 
auiiy  on  the  steamer  to  Victoria. 

'v».  Were  they  released  in  order  to  take  a  boat  to  Victoria; 
did  it  not  leave  the  uext  day? 

A.  Yes,  sir;  they  were  released  at  the  time  the  steamer 
wiis  there  so  they  could  take  the  boat  and  not  be  detained  in 
Sitka  any  longer  than  possible. 

<.•.  After  the  sentence  of  the  court  was  there  any  difterence 
in  the  treatment  of  the  men,  both  as  to  the  fare  that  they 
were,  given  and  as  to  the  place  where  they  were  allowed  to 
slet'[)  and  as  to  the  bedding  they  had  ? 

A.  No,  sir;  none  at  all. 

iteariuo-  upon  tlie  claim  that  the  captains  and  mates 
wt  re  put  hi  jail  and  kept  under  lock  and  key,  the 
story  of  the  disappeanuice  of  Cnpt.  James  ()<,^ilvie 


328 


PERSONAL    CLAIMS    OF    CAl'TAINlft    AND    MATES. 


*^'V'''  ''""<li>^<'l<»se«  tliat  those  iiu'ii  were  allowed  to  go  as  thov 
desired  while  they  were  in  Sitka.  Oai)taiu  Ouilvic 
was  ill  with  a  fatal  disease  when  hearri\ed  at  Unalaskii. 
The  surgeon  oi'  tlie  ('(inriii  took  him  aboard  the  cutter 
and  cared  for  him  on  the  \(>yau'e  t<»  Sitka.  After  tli;' 
arrival  at  Sitka,  ('aj)tain  Ouilvie  disaj)])eared.  Later 
his  l)od\'  was  foinid  in  the  woods  near  Sitka. 

('ross-exaniined  relatixe  to  the  treatment  that  was 
accorded  the  masters  and  mates,  Captain  h*aynor  said: 

R.,  514,  lino     (^),  Xow,  then,  dill  vou  liave  a  guaid  over  you  before  tbe 
^''-  trial? 

A,  Xo,  sir. 

<»),  The  door  was  never  locked  ? 
A.  No,  sir. 

ii.  Did  a  guard  stay  tbei'e  at  night .' 
A.  Yes,  sii'. 

(J.  Was  the  guard  armed  ? 
A.   He  was  not. 

i}.  When  you  went  out  did  the  guard  go  with  you? 
A.  Xo,  sir. 
<l  Who  did? 
A.  Nobody. 
(,».  Who  went  out? 
A.  1  went  out  myself. 
(|).  Anybody  else  with  ;:tu? 
A.  In  fact  they  all  went  out. 
<v).  Von  had  to  get  lea\e.' 

A.  1  had  to  ask  the  marshal;  and  by  asking  the  niarslial 
we  could  go  out. 
(,►.  Did  you  have  a  light  iiL  night? 
A.   Ves,  sir. 

ii.  l)i  I  you  sh^ej)  on  the  lloor? 
A.  We  slept  on  a  mattress  on  the  Uoor;  yes,  sir. 

^farnktich  testified  that  while  at  Tnalaska  the 
erew  were  confined  aljoard  the  (hnrard  and  were 
unable  to  leave  the  ship,  and  that  all  the  crews  wen' 
confined  aboard  their  reH])ective  veHsels. 

JanKs  Mnn^i'er,  a  witness  called  on  behalf  of  G  rent 
Bi'itain,  testilied: 

11.,  637,  line     i).  Will  you  tell  us,  Mr.  Hunger,  iiow  long  after  you  cot 
60.  into  l-nalii.ska  did  you  leave  on  the  St.  Paidf 

A.  About  a  week,  I  think, 


Wt 

'Hi 

ai 

i 

1. 
A. 

ii"-i. 

fS. 


PERSONAL    CLAIMS    OF    CAPTAINS    AND    MATES. 


^'<>  its  fhov 

It  a  ill  Ooilvie 
|at  IJiiaiitska, 

•d  flu-  cutu-r 
I-  After  tl!!- 
[ired.     Liitw 

ka. 

'lit  that  was 
h'ayiior  said; 
yon  before  tlie 


til   \()U? 


'  tlie  niarslial 

sir. 

lalaska  tlif 
'  and  were 
crewis  wew 

ilf  of  G  resit 
ifter  yon  jrot 


(^>.  And  yon  staved  on  the  Carokna  all  that  time? 
'       A.  No. 

i).  1  hul  you  been  ashore  ? 
A.  Yes. 

(,».  Uack  and  forth? 
A.  Yes;  out  fishing. 

( ';\\)t.  Louis  ( )lseii,  testif\"iii,<>'  relatise  to  the  seizure R.,_iot4, line 
of  the  Aimn  Beck  in  1887,"sai(l:  ^^' 

(,>.  Wheic  did  you  sleej)? 

A.  On  the  floor  in  the  jury  room  on  our  own  blankets. 
Tiic  jury  room  was  about  luilf  the  size  this  hall. 
().  I  low  long  did  you  remain  in  that  room  ? 
A.  lUtil  the  10th  or  12th  of  !Sei»tember. 
<^>.  Could  you  have  j^ot  away  before? 
A.  No,  sir. 

i^.  What  distiidine  was  there  while  you  were  in  that  room; 
Liul  you  to  be  in  at  any  hour? 
A.  1  dul  not  hear  auythinj^-  to  that  effect. 
(},    Yoii  cdiiK:  and  ii'oit  as  ijou  plcdHi'd* 
A.    i>,s'.     Thrriicfis  no  u'stHctioH  m(ule  on  me  that  I  heard. 
(}.  Wei  3  you  ever  tried'? 

A.  Well,  the  Rush  arrived  and  I  was  u]»  for  trial  next  day. 
Ill  fart,  they  were  trying  the  case  of  the  Sd/nvortl,  and  I 
supposed  I  would  come  next.  The  mail  steamer  Anmomla 
arrivf.d  and  the  .judge  adjourned  the  court  until  he  would 
It""  ive  some  mails.  The  next  day  I  was  informed  by  Csiptaia 
^\  arren  that  we  were  clear  to  go  any  i)lace. 
<,>.  Von  were  told  that  without  going  into  court? 
A.  Y'es,  sir. 

<,».  And  you  imme<liately  went  home? 
V.  As  soon  as  the  mail  sieamei"  wiis-  ready  to  leave  we  all 
wi  It  on  board,  myself  and  iie  ma(.:  and  C'aptain  Warreu, 
an  I  the  captain  and  the  mate  of  the  ^miward. 
\K  Who  ])aid  your  passage? 

A.  (Captain  Warren  at  the  time  went  good  for  it,  and  I  had 
lo  pay  it  myself  on  my  return  to  Victoria,  as  far  as  I  can 
it'coliect. 
\>.  When  did  you  get  to  Victoria  ? 

A.  I   can  not  say  i>ositiveIy.  but  I  think  it  was  in  the 
iii'igliborhood  of  the  -'0th  of  Sei)tember, 
<f.   Was  n  (jnard  placed  over  you .' 
A.  No,  Kir, 

if.   Wrrv  the  iloors  locked  f 
A.  Thk 

<i>.   Y'on  could  coinv  (Did  (]o  (is  i/oii  ])U'((scd  * 
A.   SfiH;  I  hclicre  ire  could.     In  the  ddijtimt  we  did  so. 


R.,  1064,  line 
41. 


m- 


330 


PERSONAL  CLAIMS  OF  CAPTAINS  AND  MATES. 


R.,  1065,  line 
5. 


Q.  How  do  you  know  that  wheu  you  had  no  guard  i)lace(l 
over  ycu  ? 

A.  Well,  Judge  Dawson  told  us  at  the  time  we  arrived 
there  that  we  were  in  charge  of  the  United  States  marshal. 
That  is  the  words  he  used. 

Q.  How  did  the  United  States  marshal  show  that  he  had  yon 
in  charge  f 

A.  ire/Z,  hy  supportinf/  us  in  food,  I  suppose,  as  long  as  ire 
tcere  there. 

Q.  And  you  were  allowed  to  go  about  the  streets? 

A.  Yes,  sir. 

(i.  And  you  were  allowed  to  go  anywhere  you  pleased? 

A.  Sitka  is  on  an  island,  and  we  could  not  go  any  further. 

Q.  You  never  went  up  to  Indian  River  ? 

A.  Yea,  I  did. 

Q.  Did  not  anyone  stop  you ! 

A.  No. 

Q.  Were  you  ever  Interfered  with  in  any  such  trip  you 
took  about  Sitka? 

A.  Not  that  I  remember;  no,  we  were  not. 

Q.  Were  you  ever  tried  ? 

A.  No,  sir;  but  the  IT.  l\  Soy  ward  was  on  trial  that  day. 

Q.  Were  any  one  of  the  masters  or  the  mates  tried? 

A.  No,  air. 

R.,  1097,  line      Andrew   D.  Laiiig,  testif'yino-  in  his  own  behalf, 
said : 

Q.  What  was  done  with  the  scliooner  .* 

A.  She  was  brought  inside,  into  8itka  Harbor. 

Q.  What  was  done  with  you  on  that  morning!! 

A.  We  got  in  there  between  7  and  8  o'clock.  The  trial 
was  coming  off  of  the  ci'ew  of  the  Anna  licek  and  the  Chil- 
lenge,  and  they  tried  us  the  same  day. 

(i.  Uow  did  you  know  you  were  going  to  be  tried;  what 
uotice  was  given  you  ? 

A.  The  deputy  marshal  says,  "Y'^ou  better  come  up  to  the 
court,  the  trial  is  going  on  of  the  other  two  vessels,  and  they 
will  try  ycm  at  the  same  time."    So  we  went  up  in  the  court. 

ii.  What  liappened  wiien  you  got  into  court? 

A.  We  were  asked  by  the  Judge — Judge  Dawson — if  we 
were  sealing,  and  we  told  him  we  went  tliere  to  hunt— to 
seal;  they  all  gave  the  same  answer. 

Q.  What  happened  after  that? 

A.  We  were  bound  over  to  stay  in  Sitka  until  the  Hush 
arrived.  The  judge  told  us  to  beliavc  ourselves  ami  we 
would  be  all  rigb.t. 

Q.  How  long  did  you  stay  in  Sitka? 


PERSONAL  CLAIMS  OF  CAPTAINS  AND  MATES, 


331 


riiard  placed 

|e  we  arrived 
Ktes  luarslial. 

\at  he  had  you 

his  long  UK  ire 

reets  if 

|ii  pleased  f 
any  further. 


iich  trip  you 


'ial  that  day. 
« tried? 


>wn  belialf, 


1098,  line 


w  The  trial 
id  the  Vhttl- 

tried;  wLat 

lie  lip  to  tlie 
ds,  and  they 
11  the  court. 

vson— if  we 
to  hunt— to 


il  the  Mmh 
es  and  we 


A.  From  July  until  October;  until  the  trial  came  off ;  until 
tilt'  h'lisli  came  down. 

{).  \o\\  say  that  in  1887  you  came  away  from  Sitka  in  the  i>' 
montii  of  <)ctober? 

A.  For  yood;  yes. 

{).  How  do  you  ftx  that  date? 

A.  l>ecause  w«' all  came  away  together;  the  only  one  we 
left  was  Captain  Ferey. 

{}.  You  saj'  you  came  away  for  good  in  October.  Did  you 
come  away  before  that? 

A.  1  di(l;  I  came  avray  in  August. 

i^.  llow  long  did  you  stay  away  then? 

A.  I  arrived  here  (Victoria)  on  Saturday  and  I  was  on  my 
way  bade  on  Monday. 

(^>.  Why  did  you  go  back? 

A.  To  stand  trial  ? 

(\),  Why  did  you  come  away? 

A.  1  went  to  Judge  Dawson  and  asked  him  for  i)erniis- 
sioii  to  (joiiic  home  and  see  my  people,  and  he  said  there 
was  no  trouble  as  long  as  I  gave  nv  ord  and  honor  to  come 
back  and  stand  trial;  and  I  did,  went  back  and  stood 

tii;il  when  it  come  oft". 

(,).  Where  did  you  stay  in  Sitka  while  you  w 

A.  In  the  barracks,  in   jail.     1  lived  witl 
They  gave  us  the  Jury  room  to  live  in. 

(}.  And  furnished  you  with  provisions'? 

A.  Yes. 

(,).  You  had  liberty  to  leave  the  barracks? 

A.  Yes:  we  could  go  all  over  Sitka,  wiierever  we  pleased, 
us  long  as  we  behaved  ourselves. 

^>.  Did  you  have  to  furnish  a  bond  when  you  left  Sitka  to 
come  to  V^ictoria? 

A,  No;  only  gave  our  own  recognizance. 

Mu'hiiol  F.  Kt'ote,  called  as  a  nitiiess  in  his  own  u.,  1121,  line 
bchalt;  testituMl:  ^^• 


r It- there?       R 
tlie  marslial. 


..  1098,  line 
(>8. 


A. 

tlicn^ 


After  you  got  to  Sitka,  tell  us  what  was  done  to  you? 
We  were  taken  before  the  marshal  the  night  we  arrived 


(,). 


Who  took  you? 

A.  The  otlicer  that  had  (jharge  of  the  schooner.  He  took 
us  to  the  marslial.  but  Ae  did  not  see  the  marshal,  and  we 
cauic  back  on  board  the  Vhallenfir  with  the  ollicer. 

<i>.  When  you  came  back  what  did  you  do? 

A.  Stayed  on  the  sliip  that  night. 

'i>.  Tlie  next  day  what  did  you  do? 

A.  The  next  day  or  the  day  after  we  were  brought  before 
'udge  Dawson.     1  think  it  was  the  day  after. 


332 


PERSONAL  CLAIMS  O^"  CAPTAINS  AND  MATES. 


E.,  1124,  liue 
33. 


Q.  Wli'.it  was  done  with  you  when  yon  got  before  Judge 
Daw.son? 

A.  We  were  charged  witli  sealing  illegally  in  Bering  Sea. 
and  told  we  would  have  to  wait  for  our  trial  until  the  h'mii 
would  arrive  there. 

Q.  Was  that  told  to  you  i)ersoiially  ? 

A.  It  was  told  to  us  all  when  we  were  in  the  court-house. 

Q.  Where  were  you  sent  to? 

A.  We  w^ere  .sent  nowhere.  We  were  let  go  anywhere  we 
liked  on  our  own  bail. 

(}.  Did  you  give  bail. 

A.  Tliere  was  no  giving  in  it.  I  had  nothing  to  give,  lie 
told  us  he  would  let  us  out  on  our  own  bonds  of  !?500. 

Q.  Did  .\ou  come  back  before  the  court  again? 

A.  We  had  to  go  back  two  days  afterward. 

Q.  Wliat  happened  then? 

A.  We  were  getting  hungry,  as  there  was  nothing  on 
board  the  ChaUewje,  and  we  had  to  go  and  see  what  the 
judge  was  going  to  do  for  us. 

Q.  What  did  j'ou  say  to  the  .judge? 

A.  We  told  him  how  we  were  situated ;  that  we  had  nothing 
to  eat  and  no  place  to  stay,  and  he  handed  us  over  to  the 
marshal. 

i^.  Where  did  the  mar.sbal  take  you? 

A.  The  marshal  showed  us  a  place  in  the  courthouse. 

Q.  That  is  in  the  grand-jury  room  ? 

A.  Yes. 

Q.  You  M'ere  allowed  to  sleej)  there,  were  you? 

A.  Yes. 

Q.  1  believe  there  was  i:<>t  a  guard  ])ut  over  vou? 

A.  No. 

(}.  Did  they  supplv  you  with  food? 

A.  Ye.s. 

(j|.  x\nd  up  to  what  time  did  you  stay  in  that  way  in  Sitka? 

A.  1  think  it  was  the  12th  of  September  wo  left. 

Q.  J)nyiu(/  flic  daytime  i/ou  irere  not  eompeUed  to  stay  in 
the  room!' 

A.  Ao;  ice  coiiUI  //  >  in  mtd  out  wheuei'cr  ice  lilcd. 

Q,  Around  the  ntnrts  of  isitka  .** 

A.    Kt's. 

(^>.  Where  did  ytm  take  your  meals? 

A.  In  some  room  in  the  building;  I  do  not  know  what 
l^lace  it  was. 

i).  Was  it  not  with  the  manshal? 

A.  No;  not  with  him. 

Q.  You  had  the  same  things,  ])ractically,  as  the  marshal 
had;  you  had  the  same  sort  of  table? 


PERSONAL    CLAIMS   OF    CAPTAINS   AND    MATES. 


333 


the  marshal 


A.  As  far  as  I  know,  yes. 
(,).  Was  a  table  set  ior  you'? 
A.  Yes. 

(,>.  And  you  had  chairs  to  sit  down  to  the  table? 
A.  Ves. 

().  And  a  table  well  provided  for  you  ? 
A.  Ves. 

(}.  And  comfortable  for  you  to  eat  there? 
A.  Ves. 

Q.  There  was  no  guard  accompanied    you  around  the 
streets  ? 
A.  Xo. 

().  Vou  used  to  go  out  Ashing? 
A.  I  f  we  felt  that  way  we  could  go  Hshing. 
ii.  As  a  matter  of  fact,  some  of  them  did  go  fishing? 
A.  Yes. 

( 'apt.  Charles  E.  Rayiior  testified  relative  to  tlie 
nciitmeut  accorded  tlie  captains  and  niatesof  the  seized ^^••^^■^^'  ^^^^ 
schooners  in  1887: 

<^  Were  you  arraigned  in  1887,  or  released  on  a  bail  bond? 

A.  I  never  was  either. 

(}.  So  far  as  you  know,  were  any  of  the  mates  or  captains 
that  were  taken  to  Sitka  in  1887,  during  your  presence,  ar- 
rai.iiued  or  bound  over  to  appear  at  some  later  time? 

A.  Xo,  sir. 

('a])tain  Raynorwas  testityino-  relative  to  proceed- 
iuLi's  after  he  arrived  there  on  the  AlUe  I.  AJfjer,  which ^^ig-^^'^^'  ^^°® 
was  seized  on  the  2oth  of  An;j,iist. 

( 'a])t.  James  1).  Warren,  exaniined  relative  to  theK.,  1267,  line 
treatment  of  the  masters  and  mates  in  1887,  said:  ^" 

(J.  Alter  the  seizure  of  the  vessels  in  1887  did  you  see  the 
captains  and  mates  there  in  Sitka? 

A.  Y'os. 

'»>.  Thej'  were  all  in  Sitka  together? 

A.  Y^es;  1  don't  remend)er  how  many,  but  I  know  they 
\v(  re  there. 

(t>.  And  wire  they  in  r-intody,  any  of  them,  tinder  arrest  in 
null  way,  or  natrained  af  their  liberty? 

A.  No  more  thdii  bonud  over,  I  think, 

(i.  Do  you  know  wliether  anything  was  signed  over  before 
tli(!  order  for  release  came? 

A.  I  would  iu)t  Hue  to  say  positive. 

Q.  You  were  treated  like  other  captains  there,  were  you 
not? 


"J 


S34 


PERSONAL   CLAIMS    OF    CAPTAiNS    AND    MATES. 


Vol.  5,  Amer 


A.  I  know  what  was  done  with  u\e. 

Q.  You  were  not  made  a  pet  of  specially? 

A.  I  don't  know  that  I  was. 

Q.  And  what  was  the  treatment  accorded,  so  far  as  you 
knew — you  were  captain  of  the  largest  tleet  that  went  in  the 
jiort  at  that  time — by  the  United  States  authorities? 

A.  I  was  called  into  court,  and  the  captains  and  mates  with 
me,  and  we  were  bound  over  in  our  own  recognizance  to 
appear  at  the  trial. 

(^).  ]>id  you  sign  anything? 

A.  I  don't  remember  signing  anything;  I  remember  we 
had  to  hold  up  our  hand  in  court. 

Q.  And  then  you  were  told  to  go  wherever  you  liked? 

A.  As  long  as  we  were  back  at  the  trial. 

Q.  How  long  after  that  were  you  notified  of  your  release? 

A.  I  think  it  is  the  9th  of  September  that  we  were  notified 
of  our  release. 

Q.  You  are  pretty  sure  about  that  date? 

A.  I  can  soon  tell.  I  think  that  is  the  date.  [Refers  to 
memorandum.]  On  the  9th  of  September  we  were  called  in 
and  released. 

Q.  Were  you  all  together  there,  the  captains  and  mates  of 
the  detained  vessels? 

A.  I  think  we  were.  I  think  all  the  captains  and  mates 
that  were  there  were  released;  at  least  my  entry  goes  in  that 
way.    We  were  all  called  in. 

Q.  And  told  you  were  released? 

A.  I  should  suppose  that  means  the  lot. 

Q.  Were  yon  shut  up  in  any  room,  or  told  to  go  to  any  room, 
or  unythhui  of  that  sort^ 

A.  I  was  alloired  to  go  icherever  I  saw  Jit. 

Q.  And  the  others  irere,  toof 

A.  I  ihlnh  the  others  were  under  the  same  liberty. 

Q.  And  were  you  treated  in  a  polite  and  courteous  way  by  the 
United  States  marshal  and  authorities? 

A.  1  have  no  fault  to  find  with  that  myself. 

These  claims,  which,  when  oi'i<i;"iiially  presented  to 
the  G(^)vernnient  at  Ottawa  for  the  pnrj)ose  of  being 
forwarded  to  the  Home  Government,  were  reduced  in 
amount  at  tlie  request  of  the  i)riyy  council  for  Canada, 
because  thev  were  deemed  excessive,  and  referred 


ican  re-  back  to  the  Tiarties  makinjr  the  claims,  who  consented 
ceTdiiig^H^o  a  reduction  of  one-half,  have  without  any  apparent 
Tribuiiiiiveason  been  a^ain  increased  from  the  time  of  the 

at  Pari!-,  p.  .  ^^r-    ,      • 

1S4.  presentation  at  V  ictoria.  • 


PERSONAL    CLAIMS    OF    CAPTAINS    AND    MATES. 


335 


The  following'  stateineut  shows  the  increase  in  the 
amount  demanded  by  these  claimants  at  the  various 
stiiiics  of  the  arbitration  proceedings  between  the  two 
Governments. 


I  Tribunal    Claiiu  at ! 
i  at  Paris.    Victoria. ! 


i  and  mates  of 


'  to  any  room. 


Mdii nil' $4,  000  $2,  500 

SMrlsiticli '  2,5(111  2,500 

(liitKirinsen :  4,000  2,500 

XnllMMIl :  2.  ,500  2,500 

(ImImc  (difil  before  trial) 2.  !iOO  2,500 

liliil..' 2.50U  '■  2.,')0ll 

WjiTi'ii  -',  035  ,  3.  000 

Iliillv ;  1,000  '  2,000 

iVrtv :  2,000  2,000 

Liiiiiu 1,000  2,000 

Dlscii 2,000  2,000 

Kiffc 1,000  2.000 

IVlil 2,000  2.000 

Luucl  h.Tg 2, 000  2, 000 


Final 
claim. 

$4, 000 
4,000 
4,000 
4, 000 
4,000 
4,  000 
4.  000 
4,  000 
4,  000 
4,000 
4,  000 
4.000 
4,000 
3,000 


'^riie  ob,.ervations  elsewhere  made  in  this  Ai'ti-ument, 
ivliitive  to  the  extortionate  nature  of  the  claims  pre- 
sented by  this  class  of  men  to  international  tribunals, 
apply  with  added  weight  to  the  claims  of  these  mas- 
tcis  and  mates  for  damages  arising  from  alleged  ille- 
•i'iil  arrest  and  imprisonment. 

The  United  States  assert  that  its  officers  acted  en- 
tirely without  malice  at  Sitka,  that  the  ca])taiiis  and 
mates  were  never  imprisoned  or  restrained  of  their 
''l)ert}',  and  that  there  w^as  no  detention  except  that 
tln'v  remained  in  Sitka  for  a  time.  The  claimants 
liii\('  shown  no  actual  damage,  and  no  sum  can  be 
iiw  arded  for  pain  and  sutfering  or  injured  feelingj;.. 


The  argument  of  the  motion  made  to  dismiss  the 
cliiini  of  James  Gaudin  from  the  consideration  of  the 
llinh  Commission  was  postjioned  until  the  final  argu- 

IlKMlt. 

The  United  States  contend  that  this  claim  is  notPie.adings, 

11/.  .1  .     /<  .     .  claim    No. 

})i'(»perly  beiore  this  Commission.  ii. 


336 


PERSONAL    CLAIMS    (^F    CAPTAINS    AND    MATES. 


K.,  1808,  line 
30. 


20. 


A  stipulation  conseuting-  tluit  tlie  High  Commis- 
sioners niig'ht  report  the  facts  to  their  re.si)ective  Gov- 
ernments regarding-  this  chiini  was  filed. 
B.,  1216,  line  The  llecord  discloses  that  Captain  Gaudin  arrived 
in  Sitka  on  the  r)th  day  of  September,  1887,  and  loft 
for  Victoria  on  the  9th  day  of  Septendjer;  that  lie 
never  was  restrained  of  his  liberty  in  any  way;  that 
lie  never  was  detained  by  the  authorities  of  the  United 
States,  and  that  he  suffered  no  hardship. 


the  carolbna. 

Claim  No.  1. 

Tlie  presenfatioii  of  this  claim,  in  the  Ar<>iin)eiit  on 
Ix^liiilt"  of  (xreat  liritain,  radically  differs  from  the 
claiiii  as  presented  by  the  testimony  of  the  claimants 
at  \'ictf>ria.  The  evidence  offered  relatin<>'  to  the  cost 
of  supplying-  Mmisie's  trading-  station,  the  cost  of 
c'(]iiipping  a  sealing  vessel  for  a  hunting-  voyage  on 
tlic  west  coast  of  Vancouver  Island  before  tlie  de- 
parture of  the  shij)  for  the  voyage  to  Bering-  Sea, 
and  the  vouchers  placed  in  evidence,  aggregating 
about  S6,000,  which,  according  to  the  claimants,  rep'- 
resented  the  cost  of  outfitting  this  small  schooner  of 
28  tons  for  a  sealing  voyage  in  Bering  Sea  of  two 
months,  receive  no  consideration  in  the  British 
Argument. 

The  Carolena  entered  Bering  Sea  in  1886,  about  tlieu.,  376,  line 
13tli  of  June,  and  connnenced  hunting  about  the  1st 
of  July.     She  was  seized  on  the  1st  day  of  August 
by  the  United  States  revenue  cutter  Corwin  for  viola- 
tion of  the  municipal  laws  of  the  United  States  pro- 
liihiting  the  taking  of  fur  seals  in  Bering  Sea.     The 
cutter  took  her   to   Unalaska,  dismantled  her,  and 
thereafter  the  vessel,  outfit,  and  cargo  were  libeled  by  K»52. 
the  Government  of  the  United  States  in  the  United 
States  district  court  of  Alaska.     The  inventory  of  the  ^  p/\t^-  ?• 
articles  on  board,  as  prepared  by  the  officers  of  the    Exhibits' 
cutter,  is  in  evidence.  p-^^- 

The  decree  condemning-  the  vessel  was  entered  on 
the  4th  day  of  October,  1886.  She  then  became  a 
total  loss  to  her  owners.  ^  .v.. , ... 

riie  property  described  in  the  inventory  is  th3  run- 

B  s 22  337 


66.  A  u . 
swerofthe 
Unite  d 
S  t  a  t  e  ss 
Pleading. 
No.  1. 


338 


THE  CAROLENA. 


niii}4"  <»ear  aiul  necessary  eciuipmeiit  i>t'  the  vt'Sisel. 
'I'liere  were  but  a  few  articles  removed  from  the  (V/;- 
olcna  for  wliidi  the  United  States,  in  any  event,  would 
b3  liable  to  pay  beyond  the  value  of  the  vessel. 

The  i)ro})eri,y  taken,  not  in(;luded  as  a  part  of  tlie 

vessel,  is  set  out  in  a  receipt  f^iven  to  Captain  Abbe} , 

^G  ^B    a'  <^<^"i"^^^^^^"i&  *'i^  revenue  cutter  Conrhi,  by  the  United 

No.  1;  Ex- States  marshal.     The  pn>perty  there  described  coii- 

mbits,    P}5Jgtsof  68;')  fur-seal  skhis,  12  ])uj)  skins,  1  hair-seal 

skin,  1  yawl,  inventoried  by  error,  4  canoes,  4  j^affs, 

2  spears,  13  baj'-s  of  Hour,  2  boxes  of  bread,  etc.     The 

other  articles  named  are  either  of  no  value  or  belong 

pro})erly  to  the  ship. 

^60^^^'  '^°*     ('apt.   Charles  K.  Kaynor  was   })resent   and  saw 

Lieutenant  Cantwell  take  the  inventory. 

There  was  some  evidence  offered  (jn  behalf  of  the 
claimants  showin**- that  j)rior  to  the  time  the  invcntorv 
was  taken  by  the  officers  of  the  cutter  certain  pro- 
visions were  removed  to  the  steamer  St.  Paid  for  tlie 
purpose  of  su})plyin<>-  the  crew  of  the  Carole na  on 
their  trip  to  San  Francisco,  where  they  were  sent  at 
the  expense  of  the  United  States. 

David  Russell,  a  witness  called  on  behalf  of  the 
claimants,  stated  the  amount  of  provisions  that  were 
R.,  584,  line  taken  aboard  the  .S7.  Paxl.     The  value  of  the  articles 
^^'  is  inconsiderable. 

The  vessel,  being-  a  total  loss  to  her  owners,  tlie 
measure  of  damaji^es  is  the  cost  of  replacing  the  ves- 
sel at  the  port  of  departure  in  the  condition  in 
which  she  was  when  seized,  together  with  the  value 
of  the  seal  skins,  guns,  and  canoes  on  board,  and  the 
su})plies  not  pro[)erly  a  jjait  of  the  ship. 

The  value  of  this  vessel,  of  about  28  tons,  has 
been  discussed  at  length  in  another  part  of  this 
Argument. 

The  amount  charged  for  the  four  canoes  and  outfit 

^53"'^^'  "°"is  exorbitant.     Captain  Warren  testified  that  $20  was 

the  cost  of  the  canoe  on  the  Sayward.     In  the  ached- 


the  vossel, 

•on  I  tllO   Cdi: 

event,  would 
vessel. 
ii  part  of  tlie 
)t{iin  Abbey, 
ly  tlie  United 
ascribed  coii- 
i,  1  hair-seal 
loes,  4  j>-affs, 
a,  etc.  The 
ue  or  beloiiff 

^nt   and  saw 

tehalf  of  the 
lie  invontorv 
certain  pro- 
Pmd  for  the 
Carolcna  on 
were  sent  at 

•ehalf  of  tlie 

IS  that  were 

the  articles 

owners,  the 
ing-  tlie  ves- 
M)ndition  iu 
th  the  A'aliie 
ard,  and  the 

8  tons,  has 
>art   of  this 

>s  and  outfit 
lat  $20  Avas 
I  the  schetl- 


THE  CAROLENA. 

iik's  pre})ared  l)y  the  owner  of  the  Ada,  the  cliarjie  is 
made,  3  canoes,  84();  being-  somewhat  oxt'V  815  ea(!h. 
Tlic  testimony  of  other  witnesses  in  the  Ivecord  shows 
Ijcyoiid  question  that  the  values  placed  upon  these 
canoes  by  Munsie  was  fictitious. 

John  Cotsford  testified  that  one  of  the  canoes  was 
l)ou<iht  for  him;  that  he  was  there  when  it  was  ])ur- 
cliased;  that  "I  had  the  largest,  and  I  sup})0se  con- 
sidered a  Httle  the  best." 

(}.  How  much  did  it  cost? 

A.  Eleven  dollars,  I  believe;  that  is  what  1  understood  the 
price  that  was  paid  for  her. 

lie  further  testified  that  he  had  knowledj^e  of  the 
value  of  canoes,  and  that  these  canoes  which  he  saw 
al)<)ard  the  Carolena,  and  one  of  which  he  used  as  a 
hunter,  were  worth  between  810  and  ^If)  each.  The 
price  char<red  in  the  schedide  is  S(I2  each. 

The  item  "one  boat,  8100"  is  a  charge  made  for  a 
boat  which,  accordinj^  to  the  testiuKniy,  was  lost  before 
the  vessel  was  seized.  John  Cotsford,  who  was  on  the 
vessel  when  seized,  said:  "I  believe  that  the  boat  was 
lost  on  the  Wiiy  up."  The  ca])tain  of  the  Carolcna 
wrote  a  letter  at  Unalaska  in  which  he  stated:  "Thir- 
teen days  lifter  we  left  Clayoquot  we  w^ere  in  Bering 
Sea;  we  lost  the  boat  from  the  stern."  This  was 
l)iior  to  the  seizure.  The  foundation  for  this  ( laim 
is  that  by  mistake  the  officers  of  the  cutter  inventoried 
one  boat  as  belonging  to  the  Carolena.  The  boat  they 
inventoried  belonged  to  the  Thornton.  Inspecting 
the  inventory  of  the  Thornton,  it  will  be  discovered 
that  although  she  carried  four  b(^ats,  only  three  were 
in\  entoried.  The  claim  made  on  behalf  of  the  Thorn- 
ton is  for  four  boats. 

The  claim  "Cash,  Ogilvie,  8500,"  is  without  any 
foundation  whatever.  Munsie  testified  that  upon  the 
vessel  leaving  in  May  Ogilvie  had  $500  "for  inci- 
dental expenses  and  advances  to  men  on  voyage,  etc." 
This  money  was  undoubtedly  expended  by  the  cap- 


339 


R.,  1229.  line 
J2. 


ii.,  375,    line 
24. 


R.,  375,   line 
62. 


Ii.,  383,  line 
20. 


R.,  391,   Hue 
57. 


Ex.,  45,  line 
line  13,  Ei- 
h  i  l>  its, 
p.  m. 

Argun"'nton 
behiiif  o  f 
Great  Urit- 
ain,  p.  102, 
line  15. 

Voucher  No. 
30,  Ex.  Xo. 
10,  Exliib- 
its,page  19. 


340 


THE    CAROLENA. 


tain  of  tlic  sliip.  There  is  no  testimony  tliat  O^iilvic 
liiid  tile  money  at  the  time  of  the  seizure,  and  unless 
the  (»\vners  of  the  ship  intend  to  charj^e  the  "iHcersof 
the  United  States  cutter  with  misappropriating-  this 
fluid  there  is  \u)  reason  for  tlu^  claim, 
a.,  499,  line  Cyautaiu  Oii'ilvie  wandered  off  into  the  woods  at 
Sitka,  and  was  afterwards  found  dead. 

The  Tnited  States  denies  any  liability  whatever 
for  this  money,  and  there  is  no  evidence  that  it  wjih 
ever  in  the  possessicai  of  the  United  States,  and  if  it 
had  been  taken  by  the  officers  of  the  Uniteu  States 
from  CJaptain  ()<>ilvie,  it  trnuld  haw  hern  rctunnJ. 

The  charji-e  for  rifles  and  shot^'uns  is  out  of  all 
proportion  to  their  real  vahie. 

The  item  "Ikdyea's  bill,  >'i:')(V  rests  upon  the  fol- 
lowing- testimony  of  Munsie: 

R.,  139,  line  Q.  The  contract  with  Mr.  Belyea  was  uot  in  writing,  I 
44-  think! 

A.  No;  not  in  writing. 

Q.  It  was  made  up  at  the  time,  though? 

A.  It  was  made  at  the  time  he  undertook  to  look  after  the 
case. 

Q.  You  are  bound  to  pay  hiui  $750? 

A.  If  I  do  not  get  the  claim  I  might  not  pay  him;  I  might 
object  to  it. 

Q.  But  you  agreed  to  pay  him  $750,  at  all  events,  for  his 
services  ? 

A.  There  might  have  been  a  condition. 

Q.  Was  there  ?  We  don't  want  any  statement  as  to  what 
might  be,  but  what  is. 

A.  I  won't  state  positively  whether  I  agreed  to  pay  him; 
positively  whether  the  claims  were  paid  or  were  not  paid,  but 
I  rather  think  there  was  an  understanding  that  if  they  were 
not  paid  I  would  not  have  to  jiay  him  quite  as  much. 

Q.  Did  you  name  any  amount  that  you  should  pay  him,  at 
all  events? 

A.  I  do  not  remember  that  there  was. 

E.,  139.  Regarding-     the     charge    of    Willoughby    Clark 

"Charges  at  Sitka,  8.500,"  Munsie  testified  that  he 
regarded  the  charge  as  excessive,  and  refused  to  pay 
it;  but  that  Clark  seized  some  skins  of  his  in  Sitka 
and  rather  than  have  a  lawsuit  regarding  the  claim, 


THE    CAKOLENA. 


341 


IiJit  (Kilvie 
Jnid  unless 

'  rii(!('rs(,f 
i"iatiiio'  tliis 

W(K)(]s  at 

wliatcvci' 

tllJit  Jt    \V}|S 

^,  siiul  if  it 
litcu  Sfjite.s 

^  out  of  all 
)oii  the  f(»l- 
in  writing,  I 

look  after  the 

tiim;  I  might 
^ents,  for  bis 

it  as  to  what 

to  pay  him; 
uot  paid,  but 
if  they  were 
luch. 
i  pay  hiui,  at 


iby  Clark 
3d  tliat  lie 
sed  to  pay 
s  in  Sitka 
the  claim, 


lie  |iai(i  tlio  amount.  Tliis  sei/ureof  skins  was  inado 
s('\(ial  years  after  lHS(i,  and  because  Mr.  Munsie  was 
wiliiii^i'  to  allow  Clark  t<>  secure  from  him  an  (exorbi- 
tant sum  the  (iovernment  of  the  United  States  is  not 
lial)le  to  repay  that  exorbitant  am()unt,  expended  on 
iici  ount  of  his  own  ne^i'ligence  in  not  i)rotectin<(  his 
interests. 

The  item  8302  for  insurance  covers  the  charge  for 
a  xcar.  The  insurance  would  be  canceled  innnedi- 
ately  upon  the  boat  Ijeinji"  seized  and  the  j)remium, 
if  jiaid  in  advance,  refunded.  The  ])olicy  is  not  in 
eA  idence.  If  the  owner  is  j^aid  for  tlie  value  of  the 
skins  taken  before  the  seizure  he  will  receive  the 
lienefit  of  the  insurance  to  that  time. 

The  item  "J.  1).  Warren,  expenses  to  Ottawa,  put- 
tin<i'  in  claim,  S»ir)2,"  is  for  ex})enses  in  connection  with 
tliis  claim  ajjainst  the  Government  of  the  United 
States,  and  can  not  be  allowed. 

The  item  "Time  and  personal  expenses  of  owner, 
>^2r)(>,"  is  absolutely  without  testimony  showinj^  any 
time  or  money  ex})ended  in  connection  with  this  I'laim. 
In  any  event,  tlie  United  States  is  not  liable  for  the 
time  of  the  claimant  used  in  the  endeavor  to  secure 
from  this  Hijrh  Conunission  an  award. 

The  item  "Ex})enses  remainder  of  crew,  saij  $50," 
is  w  ithout  any  testimony  to  sup})ort  it. 

The  item  ^^S(uj  one-half  slop  chest,  SlOO,"  is  not 
taken  from  the  Record. 

The  projjcrty  aboard  the  schooner  was  inventoried 
l)y  the  United  States  officers,  and  the  only  other 
])r(>pertv  removed  from  the  vessel  was  that  put  aboard 
the  St.  'Panl. 

The  claim  for  "estimated  value  of  provisions  and 
annnuiiition  which  would  have  been  left  after  a  full 
\<»ya<»'e,  say  $200,"  is  covered  by  the  value  of  the 
jiroperty  inventoried  by  the  officers  of  the  cutter  and 
tlie  proi)erty  put  aboard  the  St.  Paul. 


342 


THE  CAROLENA. 


A  jMU'tioii  of  the  small  items  following- in  the  selied- 
ule  belong"  pro])erly  to  the  ship. 

The  item,  "Estimated  value  of  articles  that  were 
doubtless  on  board  vessel,  but  which  can  not  now  l)e 
specially  mentioned,  say  ^200,"  is  Avithout  fomidit- 
tion. 

The  officers  of  the  revenue  cutter  specitically  men- 
tioned the  pro})erty  taken  from  the  Camlcna,  with  the 
exce]ition  of  the  projierty  taken  aboard  the  St.  rdnl. 

The  United  States  seized  and  retained  the  seal  skins. 
Their  value  is  the  market  price  ruling  in  Victoria  ;it 
the  time  they  would  have  been  ])laced  upon  that  mar- 
ket tV)r  sale  by  the  ownerw. 

The  claim  tor  estimate*!  catch  and  for  damages  'n 
the  year  1887  can  not  be  allowed.  This  case  is  one 
of  total  loss,  and  m»  decision  van.  be  found  in  support 
of  allowing  futurt*  »-arnings  in  ca^e  of  total  loss. 

Tlie  item  "ex])eiises  and  hardshi])  of  crew,  !)  men, 
at  >>')(»(')  each,  >>4,r)()(),"  is  without  foundation,  in  fact; 
and  its  consideration  is  l)eyond  the  jurisdiction  of  this 
Hisi'h  ( 'ommission.  The  claims  are  personal  claims, 
aiui  ace  not  include<l  in  the  Convention. 

Tlie  items  "for  illegal  arrest,  detention,  impnson- 
ment,  and  other  iiardshij)  of  .lames  Ogilvie,  master 
of  Caroli'mi'  and  of  "James  Blake,  mate  of  CaioleiKi,'" 
iJ54,OO0  each,  are  discussed  at  another  place  in  this 
Argument,  t(>gethcr  witli  all  personal  claims,  (-ap- 
E.,500,iinei.  tain  ( ^u'ilvie,  how(»ver,  died  l)v  his  own  hand,  and  in 

his  cam^  there  was  no  trial. 
R.,  no.  Although  the  claimants  have  not  asked  this  High 

Cotiiinission  to  award  86,000,  (daimed  as  the  total 
ex]>enHe  of  outfitting  the  CtiroJoKi  in  liering  Sea  tor 
the  voyage  of  188<),  the  amount  lias  not  been  les- 
sew*ed,  but,  on  the  contrarA',  as  shown,  is  increased 
without  any  ap))arent  reasttu,  from  the  time  that  the 
claim  was  filed  at  Victoria. 

The  United  States  <daiMi  that  An<lrew  J.  Bechtcl, 
a  native-born  c^itiizen  (»t  the  United  States  of  America, 


THE    CAROLENA. 


343 


li  tlie  sclied- 

p  tliat  were 
Jnot  now  he 
pnt  fouiida- 

U'Jilly  nieii- 
\'/(i.  with  the 
lie  ,S'/.  JMnl. 
jeHenl  skins. 

Victorin  nt 
11  tluit  iiiai- 

iaiiiao'es  ',i 
(taHe  is  one 
ill  .siii)|)ort 

OSS. 

vw,  I)  men, 

ion,  ill  faet; 

tioii  of  this 

Hial  chiiins, 

,  iiiij)ns(in- 
vie,  master 
i'  Caioletm," 
fice  in  this 
iiiis.  ("ajt- 
111(1.  and  in 

this  Hiyl, 

>  the  total 

1^'  Sea  for 

been  les- 

iiicreasHfl 

le  that  the 

I  Hechtel, 
'  Ameri(;ii, 


was  an  owner  of  hall"  of  the  Carole tni  at  the  time  of 
rlic  seizure,  and  that  this  High  Commission  can  award 
11(1  <hmia<j;'es  to  the  owners. 
Vrilliain  Mnnsie  testified: 

(}.  Wlio  was  the  owner  of  her  when  you  commenced  to  buy  r.,  87,  line  6. 
her  jthe  Varoleuayi 
A    I  believe  Donahl  rrquhart. 

Tiitrick  Hickey,  calle*!  as  a  witness  on  tlie  part  of 
tlic  I'liited  States,  was  sworn  relative  to  the  Carohna. 


U.,  1022,  line 

u. 

Line  50. 


(}.  Did  you  know  the  schooner  Carolom* 

A.  I  did  know  the  schooner  Garolena. 

().  Were  you  a, joint  purchaser  with  Mr.  TTquhart? 

A.  I  invested  money  with  Captain  Urquhart. 

().  In  the  pnrcliase  of  the  ship? 

A.  In  the  purchase  of  the  ship. 

Q.  About  what  year  was  that? 

A.  That  was  in  1884. 

(i>.  To  whai  extent  did  you  furnish  money  in  the  purcliase 
of  the  ship? 

A.  Five  hundred  dollars. 

Q.  And  what  was  the  total  cost  of  the  shii)  ? 

A.  I  was  {jiven  to  understand  that  it  was  $1,(100. 

().  You  furnished  half  ot  the  purchase  price,  as  you  under- 
stood it? 

A.  Yes,  sir. 

(^1.  You  were  at  that  time,  I  think,  an  American  citizen? 

A.  I  was. 

<i>.  And  you  purchased  her  jointly  with  Mr.  Urquhart, 
who  was  a  British  subject? 

A.  Yes,  sir. 

The  wntnesH  tlien  stated  tliat  the  sliip  was  repaired, 
and  that  her  total  cost  after  repairs  was  ahmit  s2,()00;  i^-gi023,  line 
that  tile  vessel  was  registered  in  the  name  of  (Japtain 
(  r(|uhart,  and  that  he  had  an  agreement  from  him  Line  40. 
stating  that  he  was  a  half  owner. 

(}.  Now,  you  got  some  proceeds  when  the  vessel  was  sold,  Line  50. 
(lid  you  not? 

A.  1  don't  know  tliat  I  did,  sir. 

(}.  Well,  was  the  sale  accounted  to  you? 

A.  The  sale  was  made  by  Cai)tain  Urquhart. 

(.).  Who  to? 

A.  1  understood  to  Mr.  INfunsie. 

(^  Now,  do  y^u  remember  what  Mr.  Urquhart  told  you  he 
liatl  received  tVir  the  schooner? 


344 


THE    CAROLENA. 


E.,  1024,  line 
8. 


A.  I  do. 

Q.  What  was  it? 

A.  No ;  there  was  no  writing  at  all.   He  rendered  m*^  !5il,000, 

Q.  For  your  half! 

A.  As  he  told  ine  it  was  for  the  half. 

Q.  Stated  to  you  that  he  sold  it  for  $2,000  and  your  half 
was  $1,000! 

A.  He  so  stated. 

Q.  And  that  was  the  sale  to  Mr.  Munsie! 

A.  So  far  as  I  can  understand — as  I  understood  it  at  the 
time. 

Munsie  testified: 

R.,  87,  Hue  8.     Q.  In  1885  did  you  enter  into  negotiations  for  the  purchase 
of  any  part  of  the  Carolena^ 

A.  Yes;  21  shares. 
Line  22.  Q.  When  you  were  buying  the  one-third  and  Mathesou 

another  one-tliird  from  Captain  Urquhart,  was  there  any 
valuation  put  on  the  vessel  at  that  time! 

A.  Yes;  about  )i!S3,800 

Q.  Were  you  to  pay  Urquhart  at  that  rate! 

A.  Yes;  at  that  rate. 

Q.  How  did  you  pay  for  that  vessel  then  !  Did  you  pay 
all  that  amount  of  money  in  cash! 

A.  No ;  I  did  not. 

Q.  Did  you  pay  a  part  of  it  in  cash? 

A.  I  paid  part  cash. 

Q.  And  the  rest  was  paid  how  ? 

A.  In  two  promissory  notes. 

Q.  Have  you  those  promissory  notes  in  your  possession 
now! 

A.  No;  1  have  not. 

^B^ci%o"  ''^'^  '^'^'  of  sale  tivm  Donald  rniuliart  to  William 
1,  Exhib- Minisie,  dated  danuarv  21,  1885,  for  21  shares,  or 
its  p.  3.      one-third  of  the  Caiolrmiy  is  in  evidence. 

The  considei'ation  expressed  in  the  bill  of  sale  is 
"!*^6(!7  (said  eonsideration  money  bein^"  value  of  one- 
third  interest)." 

R.,87,line36,     Q.  Was  Matheson  buying  on  the  same  arrangement! 
A.  Yes;  on  the  same  rate. 

The  bill  of  sale  from  Donald  Ur(|uhart  to  Heiny 
Matheson,  who,  at  tlie  time  of  the  purchase  of  21 
shares  ))y  William  Munsie,  also  j)ur('hased  21  shares, 
or  one-third  of  the  vessel,  from  Ur(|ulunt  and  Hickey 


THE  CAROLENA. 


345 


ed  uif  81,000, 
and  your  balf 

food  it  at  the 

'  the  purchase 

nd  Matliesou 
as  there  any 

Did  yoH  pay 


Lir  possession 


to  AV^illijini 
shares,  or 

1  <»f"  Srilc  is 
ilue  of  oiie- 

jement  ? 

'  to  Henry 

liasc  of  21 

21  si  wires, 

nd  Hickev 


No.  1;  Ex- 
hiltits,  p.4. 


(flic  hill  of  sale  bein^  g-iven  by  Uniuhart  because  the 
lioiit  was  reg-istered  in  his  name),,  is  also  in  evidence. 
The  consideration  expressed  in  the  bill  of  sale  is  "the 
SHIM  ot  ^<I(I7." 

William  Mmisie  purchased  the  remaining  one-third 
of  the  Carolena  on  the  4th  of  February,  1885.     ThisR^  88,  line 
bill  of  sale  is  also  in  evidence,  and  the  consideration    e,  g.b.  ci." 
rlicrcin  expressed  is  "the  sum  of  8()G7." 

The  aggregate  sum,  as  stated  in  the  bills  of  sale, 
which  was  paid  for  tlio  Curolenu  by  Munsie  and  Mathe- 
sdii  was  82,001.  This  confirms  Hickey's  statement 
that  he  received  81,000  for  his  half  of  the  Carolena 
when  she  was  purchased  from  him  and  Cajjtain  Urqu- 
liiirt  l>y  William  Munsie.  liut  Munsie  states  that  each 
time,  in  addition  to  paying  86G7,  ex])ressed  in  the  bill 
(»t'  sale  as  the  consideration,  he  gave  promissory  notes 
or  additional  cash  for  the  bahmce  of  the  purchase 
jirice,  and  tliat  the  })rice  ])aid  was  always  at  the  rate 
[■  >^3,8()0  for  the  entire  ship. 

liiasnuu'h  as  l^atrick  Ilickey  testified  that  the  ship 
cost  liim  and  Urfjuhart  about  82,000,  and  that  she 
was  sold  for  82,000;  that  he  never  received  but 
^l.OOo  for  his  half  interest,  William  Munsie,  if  this 
were  all  there  was  to  the  transaction,  shows  himself 
til  he  unworthy  of  belief  The  promissory  notes 
which  lu!  claims  to  have  given  in  addition  to  the  con- 
Mihration  of  8()(j7  are  not  in  evidence.  No  check 
was  nfi'ered  in  evidence  to  su})port  his  contention  that 
any  additional  sum  was  jniid,  (uid  no  icituess  sup- 
jtoiiiil  h't.s  tcsfitnoH//. 

(hi  the  l{)th  day  of  June,  188'),  Munsie  purchased 

hum    Matliesou   tlie  one-third  interest  which  he  had '^^i;  ^":  \,^- 
...  .^.  ,    ^^.  Is.  Cl.  No. 

inionred  trom  urquliart  and  llickey,  and  the  con- 
siih-ratiou  expressed  in  that  bill  of  sale  is  "$667." 
A( cordingly,  on  the  l&th  of  June,  1885,  William 
.Munsie  was  the  owner  of  the  Carolena.  He  had  paid, 
a((<irdiug  to  the  bills  of  sale,  82,001  for  the  ship. 
The  registry  of  tlie  Carolena  discloses  that  in  Feb- 


1,     Exhib- 
its, p.  5. 


Ml 


346 


THE  CAROLENA. 


niary,  1885,  when  Muiisie  purcha.sed  from  Ur(|ii]iail 
and  Hickey  the  second  third  of  the  Carolma,  that  he 
executed  a  niortg-affe  to  Andrew  J.  Beclitel. 

On  the  4th  day  of  February,  1885,  Munsie  was 
the  owner  of  twt)-tliirds  of  the  (hrolena,  and  he  had 
paid  therefor,  accordiiig  tc/  the  consideration  expressed 
in  tlie  bills  of  snlc,  the  sum  of  >i>l,334.  Munsie  stated 
that  lie  b*  arrowed  8500  from  Bechtel  at  this  time. 
This  was  to  avoid  the  conclusion,  which  the  instru- 
ment itself  would  sug-g-est,  that  he  had  mortfi^ao'ed  to 
Bechtel  one-third  of  the  vessel  for  sfU!?,  exactly  what 
he  had  paid  for  it,  according-  to  the  bill  of  sale. 

R.,  89,  lino  Q.  What  I  want  to  get  at  is  this :  The  consideratiou  in 
*^'  that  mortgage  is  stated  at  $667 ;  was  $607  the  amount  you 

actually  borrowed,  or  was  it  more? 

A.  T  borrowed  about  $500. 

Q.  There  seems  to  be  the  same  amount  stated  in  all  these 
documents.  For  some  reason  or  another  it  was  i)ut  in  here 
at  $667,  but  that  was  not  the  real  transaction? 

A.  I  think  the  amount  was  put  in  to  coVer  interest.  1 
would  not  be  positive,  but  that  is  about  the  recollectiou 
I  have  of  it. 

Q.  Did  you  settle  that  mortgage  ui>  in  the  following  June! 

A.  When  I  bought  Matheson  out  in  June  I  borrowed  some 
more  money,  canceled  that  mortgage,  and  gave  one  for  $1,000. 
I  borrowed  that  from  Mr.  Bechtel. 

Q.  Is  that  the  second  mortgage  you  gave  to  the  same  man! 

A.  That  is  the  second  mortgage. 

^fl  ^f'l'*'^'       '  ^'i^  mort<j^ag'e  is  in  evidence. 
Ex8.,p".r)  '      The  mortgag'e  is  on  32   shares  of  the  vessel,  and 
the  consideration  exju'essed  is  81,000. 

It  a])])ears,  then,  that  on  the  21st  day  of  January, 
1885,  Munsie  purchased  one-third  of  the  boat,  and 
February  4  purcluised  another  third,  l^he  total  sum 
paid  was  81,334,  as  ex]n*essed  in  the  bills  of  sale. 

At  the  ti)r,e  of  purchasing'  the  second  interest  in  the 
boat,  he  ex<H'ute(i  a  mortgag-e  to  Andrew  J.  Bechtel 
on  one-half  the  interest  that  he  held  in  the  boat, 
viz,  on  oim-third,  for  the  suui  of  8()()7,  as  stated  in 
the  mortgage.  Munsie  says  that  only  8500  was  actu- 
allv  borrowed,  and  that  the  8l()7  was  to  cover  mtor- 


THE    CAROLENA. 


347 


in  Uniuliart 
h>na,  thiit  he 
•el. 

Muiisie  was 
and  he  had 
)n  expi-essed 

'nnsie  stated 

!it  tluH  time, 
the  iustm- 
ioi-t<ranced  to 

exactly  wliat 

i"  sale. 

iisideratiou  in 
e  amount  you 

3d  in  all  these 

as  ])ut  in  here 

? 

ir  interest.    I 

le  recollectiou 

llowing  June? 
sorrowed  some 
one  for  $1,000. 

be  same  man  ? 


vessel,  and 

;)t  Januarv, 
e  boat,  and 
le  total  sum 
of  sale, 
terest  in  the 
V  J.  lieehtei 
II  the  boat, 
18  Htatefl  in 
►0  was  a<'tii- 
I'over  inter- 


est. The.  niortfjage,  however,  by  its  terni.s  did  not 
Inar  interest.  The  fact  is  tliat  William  Munsie  eon- 
ve^  ed,  by  inortg-ag-e  bill  of  sale,  one-half  of  his  inter- 
est ill  the  Cnrolcna  to  Andrew  .].  liechtel,  and  made 
us('  of  a  morto'ag'e  because  Hechtel  was  an  American 
eitizcii  and  could  not  have  his  interest  in  the  boat 
registered  in  his  name. 
Munsie  ac(iuired  from  Matheson,  bv  bill  (»f  sale,  ^?.-  ,^.?-.p' 

II  1  /     1  ,1  < ,  r      1  •    •  •     1  •    1   •  '     L  X  h  1  bits, 

dated  .lune  11),  1886,  tiie  reinauiing-  one-tlnrd  mterest    p. 5. 

ill  the  Caroh'na,  and  on  the  same  day  canceled 
the  mortgage  for  556(57  to  Andrew  A.  Bechtel,  and 
executed  a  new  one  for  81,000,  which  did  not  bear 
interest.  ^lunsie  was,  at  the  time  of  the  execution  of 
this  mortgage,  the  registered  owner  of  the  entire  vessel, 
iiiid  he  conve}ed  32  sliares  of  the  Caro/cHa,  or  one- 
halt'  of  the  vessel,  to  Bechtel  by  mortgage  bill  of 
de,  for  the  reason  that  Bechtel  could  not  register  his 
interest  in  his  own  name. 

These  transactions,  if  Munsie  paid  83,<S0()  for  that 
hunt,  are  absolutely  unexplainable.  If  Mr.  Hickey 
received  but  81,000  for  his  half  of  the  ])oat  when 
Mr.  Munsie  purchased  it,  Munsie  ])aid  but  82,000  for 
the  lioat;  and  that  l)eing  the  fact,  the  bills  of  sale, 
mid  the  mortgages  t(>  Bechtel  indicate  ordinary  trans- 
actions. But  if  Munsie  i)aid,  as  he  swore,  83,800  for 
the  l)oat,  the  considerations  ex]»resse<l  in  the  bills  of 
sah'  are  not  exjdainable.  Why  the  exact  amount  of 
^'i')7.  which  is  the  value  of  one-third  of  the  boat, 
shiiidd  have  been  used  in  every  bill  of  sale,  and  in 
cveiy  mortgage,  uidess  it  was  the  anu)unt  j)aid,  is  not 
(■\|d;iine(l. 

fhe  etfort  of  ]\Iunsie,  however,  was  to  avoid  the 
iniuhision  that  by  reasim  oi'  the  peculiar  amounts 
expressed  in  the  mortgages  given  to  Beiditel,  he  would 
he  found  to  be  a  half  owner.  If  his  statement  that 
lie  paid  83,800  is  false,  and  it  is  abscdutely  proven  to 
lie  t'jdse  by  Patrick  Mickey,  his  testimony  that  tju^se 
iiKiitgages  were  only  mortgages,  and  were  not  given 


348 


THE  CAROLENA. 


to  IJeclitel  in  onler  to  secure  his  one-halt"  owiu'i-sliii),] 
is  ni  >t  entitled  to  credence. 

The  niortg'age  of  February,  1885,  given  at  the  time  I 
that  Munsie  owned  two-thirds  of"  the  ship,  covered  I 
but  one-third  the  shij);  and  the  mortgage  of  Jiuu', 
1H85,  when  Munsie  was  the  registered  owner  of  tliel 
entire  ship,  was  ])laced  on  32  shares.     Wliy  Muiu^ie, 
when  he  owned  the  entire  ship,  sliould  )nortgage  oiilv 
half  of  it,  is  unexplained,  and  being-  unexplained  is  I 
conclusive  that  Hechtel  owned  first  21  then  32  shares, f 
Exh.9, G.B.      The  mortgage  of  June  IJI  bears  on  its  face  con- 
i,Exhibit9,  vincing  evidence  of  the  fact  that  it  was  not  given  t(i 
P«6.  secure  the  payment  of  any  sum  of  money  whatever. 

The  words  "together  with  interest  thereon  at  the  rate 
of"  are  stricken  out,  and  the  words  "without  interest" 
inserted;  the  words  "per  cent  ])er  annum  on  the  day 
of"  stricken  out  and  "on  demand"  inserted;  the  words 
"next  and  secondly,  that  if  the  said  principal  sum  is 

not  j)aid  on  the  said  day or heirs,  executors, 

or  administrators,  will,  during  such  time  as  the  same 
or  any  j^art  thereof  remain  unpaid,  pay  to  the  said 

interest  on  the  whole  or  such  part  thereof  as 

may  for  the  time  being  remain  unj^aid,  at  the  rate  of 
per  cent  per  annum,  by  ecpial  half-yearly  pay- 
ments on  the da}'  of  and  dav  of 


Exhibit  9. 


in  every  year,"  are  stricken  out,  and  the  words 

"guns,  ammunition,  small  arms"  are  stricken  out. 
llie  ])o\ver  of  sale  clause  is  avoided  by  the  day  and 
year  being  left  blank. 

Munsie  })roduced  receipts  showing  that  the  interest 
was  ])aid  on  the  second  mortgage  for  551,000.  If  the 
High  Connnissioners  will  inspect  these  original 
receipts  again,  the  conviction  will  be  linnly  estab- 
lished that  no  interest  ever  was  paid  on  this  mortgage. 
The  receipts  have  the  j)eculiar  characteristic  of  ])e'm^ 
consecutively  numbered,  although  extending  over  a 
period  of  nearly  five  years,  and  of  being  written  on 
the  same  forms.     On  their  face  thev  bear  eviden(!e  ot 


lit'  owiiersliij), 

en  at  tlie  time 

shi}),  covered 

5-ajjj-e  of  JiiiH., 

owner  of  tlie 

Why  Muiisif. 

lortj^-fig-e  only 

nexj)l{iiiied  is 

len  82  sliares, 

its  face  con- 

not  f^'iven  to 

ley  wliatevei', 

on  at  tlie  rate 

lout  interest" 

in  on  the  dav 

d ;  the  words 

ncipal  sum  is 

irs,  executors, 

e  as  the  same 

y  to  the  said 

irt  thereof  as 

at  the  rate  of 

f-vearh-  i)av- 

day  of 

ind  the  words 
stricken  out. 
the  day  and 

it  the  interest 
,000.  If  the 
lese  oriji-inid 
firndy  estab- 
his  inortoao'e. 
istic  of  beiii;j: 
ivdin^  overii 
'g:  written  on 
r  evidence  of 


THE  CAROLENA. 


349 


iciiii;  all  prepared  at  the  same  time.     Muiisie  testified 

that   some    of   them    were    duplicates,  and    that    he 

lect'ivcd  thfciii  from  Ik'chtel  recently.     "When  1  was 

iiatJH  ring"  u})  my  pa])ers  I  asked  Mr.  Bechtel  to  given., 90, line  14. 

iiic  a  coj'y  <»f  the  recei})ts." 

Bt'clitel  testified  that  Munsie  had  never  said  any- 1^-'/^^' ^'"® 
liiiiji  to  him  about  any  duplicate  recei[)ts;  that  he  had 
i;i(l  no  Idank  receipts  for  the  last  four  or  five  years 
ike  tlie  forms  used  in  the  receipts  })ut  in  evidence; 
and  that  the  last  receipts  that  he  had  g-iveii  Munsie 
were  given  at  least  four  years  ag"o,  when  ]\Iuiisietold 
liin  tliat  he  had  lost  one  or  two. 

Munsie  was  cross-examined  fully  regarding-  these 
tiaiisactions.  He  stated,  in  order  to  explain  how  itK.,ii9. 
appened  that  he  paid  >i500  in  cash  in  addition  to  the 
sum  expressed  in  the  bill  of  sale  at  the  time  of  the 
[lurcliase  of  an  interest  from  Urquhart  and  Hickey, 
that  he  sometimes  kept  $l()/)00  in  cash  in  a  liitle  safe^-,  120,  line 
in  his  office. 

A  re-reading  of  the  cross-examination  of  Munsie 
relative  to  this  transaction  will  coimnce  the  HigliR.  119- 
Coniiiiissioners  that  the  impression  created  at  the 
hearing  at  Victoria  that  these  mortgages  were  merely 
executed  for  the  purpose  of  securing  to  Bechtel  his 
interest  in  the  vessel  was  the  fact. 

Munsie  stated  that  he  did  not  know  that  the  (kiro-  r.,  135,  line 
^nia  went  out  on  a  sealing  trip  on  the  coast  in  the  ^' 
'pring  of  188G;  that  she  might  have  brought  up  a 
fe\\  seals,  but  that  her  principal  object  was  to  go 
down  to  secure  hunters.  The  impression  that  Munsie 
endeavored  to  make  is  that  all  the  supplies  put 
iibdard  the  Carolena  in  February  were  for  the  voyage 
to  Bering  Sea,  and  for  that  reason  he  does  not  state 
tliat  the  Carolena  had  been  sealing  on  the  coast  in 
the  spring  and  used  a  part  of  the  supplies. 

The  witness,  Serault,  testified:  ^'la^^^'  "°« 

<•>.  On  whicli  trip  of  tbe  Carolena  did  he  come  to  Victoria? 


850 


THE  CAROLENA. 


A.  I  think  it  was  when  they  quit  sealing  on  the  coast,  i 
near  as  1  recollect. 
K-i  645,  line     Q,  They  went  lip  there  first  and  before  the  canoes  were! 
put  on  board,  and  went  sealing  in  the  spring,  in  February, 
on  the  coast? 

A.  Yes. 

Q.  How  many  Indians  went  on  that  trip,  the  first  trip, 
when  they  went  sealing  on  the  coast  ? 

A.  That  I  don't  know.    I  think  it  was  six  or  eight  canoes] 
the  Carolena  carried. 

^32^*^'  ^'°*  Andrew  J.  lieclitel  was  called  as  a  witness  ontliel 
part  of  the  elainiants  and  testified  that  he  had  no  in-| 
terest  in  the  Carolena  in  1880  except  as  niortgajree. 

^30^*^'  ^"'*      ^^  ^^'^'"^  devel()])ed  on  direct  examination  that  he  bad] 
signed  as  attorney  in  fact  the  claim  of  James  Ogilvie, 
master  of  the  Carolena,  for  damajfes  from  the  United] 
States.     The  witness  stated  on  direct  examination: 

E.,  147,  line     Q.  And  you  were  on  board  of  her  before  she  sailed? 
^'  A.  Yes,  sir. 

Bechtel  said  on  cross-examination: 

Q.  When  you  went  on  the  ship,  did  you  go  below? 
A.  No;  I  did  not. 
Q.  Didn't  go  below? 
A.  I  believe  I  did  go  in  the  cabin. 

Q.  What  did  you  go  there  for  ?    To  say  good-bye  to  ('aptaiu 
Ogilvie  ? 
A.  Yes. 

Q.  Just  went  on  to  visit  the  caiJtain? 
A.  Yes;  to  see  the  captain ;  that  is  all. 

John  Cotsford,  one  of  the  hnnters  of  the  Carokmi, 
was  called  by  the  United  States  as  a  witness  rej^ard- 
ing-  the  voyajje  of  the  Carolena,  and  testified: 

B.  375  line3.     Q'  Whom  did  you  tell  this  to? 
A.  Mr.  liechtel. 

Q.  Was  Mr.  Bechtel  at  that  trading  post  that  spring? 
A.  He  left  here  on  the  schooner  with  us  and  went  down. 
Q.  On  what  schooner? 
A.  The  Carolena. 

Q.  Mr.  John  A.  Bechtel,  or  Andrew  Bechtel,  otherwise 
called? 
A.  Andrew  Bechtol. 
Q.  He  started  on  the  sealing  voyage? 


R.,  153,  line 
30. 


)n  the  coast,  aa 

le  canoes  were 
,  in  February, 

the  first  trip, 
or  eiglit  canoes 

witness  on  the 
lie  liad  no  in- 
mortgagee. 
)ii  that  he  had 
ames  Ogih'ie, 
m  the  United 
'caniiiiation: 
he  sailed? 


}  below  ? 


lbyeto('aptaiu 


tlie  Carolem, 
itness  rej^ai'd- 
tified : 


hat  spring! 
d  went  dowu. 


htel,  otherwise 


THE    CAROLENA.  361 

A.  Tie  left  here  on  the  Carolena  and  went  to  Clayoquot 
witli  us. 

Q.  You  knew  him  pretty  well,  did  you? 

A.  Ves,  sir ;  I  knew  him  pretty  well.  I  had  been  acquainted 
with  liira  a  year  or  two  before  that. 

().  Was  he  carried  ott'  on  the  Carolena  by  mistake  or 
apiiiist  his  will? 

A.  I  think  not. 

(^>.  He  did  not  say  good-bye  to  Captain  Ogilvie  before  he 
carried  him  away,  did  he?  You  did  not  hear  anything  about 
his  coming  on  board  to  say  good-bye? 

A.  No. 

Q.  Well,  who  engaged  in  the  purchase  of  canoes  at 
Clayoquot  ? 

A.  Mr.  Bechtel  did  the  most  of  it. 

(\)tsford  also  testified  that  Mimsie  and  livchtd  em-^^-'^''''p  IJ"** 
phijli'd  him  to  jfo  as  a  hunter  on  the  voyage  ot"  188(5. 

James  Mnnger,  a  witness  called  on  behall"  of  Great 
Ihitain,  and  one  of"  the  hunters  on  board  the  Carolena, 
testified: 

(}.  It  has  been  stated  that  Mr.  Bechtel  was  on  board  atK.,  631,  line 
tlie  time  she  went  up — is  that  corre<!t  ?  '^^• 

A.  Yes;  he  went  up  with  us. 

David  Russell,  a  witness  called  on  behalf  of  Great 
liritaiii,  testified: 

(y  On  that  trip  up  on  the  Carolena  did  you  stop  anywhere?  R.,_r)89,  line 
A.  We  sto]>ped  at  Clayoquot.  ^^• 

i).  Was  John  A.  IJechtel  on  board  when  you  left  here  and 
stopped  there? 
A.  \'es,  sir. 

Michael  Serault,  a  witness  called  on  behalf  of  Great 
Hritain,  testified: 

<^  Did  you  see  Mr.  Bechtel  on  the  occasion  of  the  second  R.,  644,  line 
visit  of  the  Carolena  to  Clayoquot?  19- 

A ,  L  saw  him  when  she  was  on  her  voyage  to  Bering  Sea. 

riiese  three  witnesses  conclusively  establish  that 
Andrew  J,  Bechtel  swore  falsely  when  he  testified 
that  lie  went  to  the  Carolena  when  she  left  for  Bering 
Sea  to  say  good-by  to  the  captain.  The  witness 
undoubtedly  thought  if  lie  said  he  was  aboard  the 
Carolena  on  the  voyage  the    conclusion  would   be 


352 


THE    CAROLKNA. 


(Iniwii  that  he  was  a  part  owner  of  tlio  ('(iroJ<)/a.  anil 
he  tlieret'ore  desired  it  to  a[)pear  that  he  was  in  no 
way  eoniiected  witli  the  voyage. 
Beehtel  testified: 

R.,  145,  line     Q.  Uow  l(Hig  have  yoii  been  engaged  in  tlie  sealing  busi- 
^^'  n ess— about  liow  long '. 

A.  I  can't  say  exactly  as  to  a  month ;  over  three  years. 

Q.  About  three  years,  yon  mean '! 

A.  About  three  years — longer, 
E.,  145,  line     i).  Prior  to  188(5  iiad  you  anything  to  do  with  the  sealiii;: 
25.  business? 

A.  No,  sir. 

Q.  Had  you  anything  to  do  with  shipping? 

A.  No,  sir. 

Q.  Did  yon  know  anything  about  ships  up  to  that  time? 

A.  No,  sir. 

Q.  Had  you  owned  any  ship  before  then  ? 

A.  No,  sir. 

Q.  Had  you  any  share  or  interest  in  any  ships  of  any  kind 
up  to  that  time  ? 

A.  Not  any. 

Q.  And,  in  fact,  had  you  in  1886  any  interest  in  any  ship? 

A.  Not  any. 

Q.  Or  in  1887? 

A.  No,  sir. 

Q.  Or  in  1888,  as  a  matter  of  fact? 

A.  No,  sir. 

Q.  Or  in  1889? 

A.  No,  sir. 

William  Miinsie  was  a  witness  called  in  his  owu 
behalf  in  the  case  of  the  Pathfinder^  claim  No.  14. 
The  register  of  the  Pathfinder,  wliich  Mr.  Munsie  knew 
was  in  the  possession  of  the  United  States,  disclosed 
these  facts :  That  William  Munsie  had  the  entire  title 
in  his  name  to  the  Pathfinder  up  to  the  18th  day  of 
Exhibit  99  December,  1885;  that  upon  that  day  he  conveyed 
14," Ex8.,p!  sixteen  shares  to  Frederick  Cariie,  jr.,  his  partner  in 


274. 


business,  and  on  the  same  day  conveyed  to  William 
Munsie  and  Frederick  Carne,  jr.,  joint  owners,  thirty- 
two  shares,  and  on  the  same  day  William  Munsie  and 
Frederick  Carne,  jr.,  mortgaged  sixteen  shares  to 
Andrew  J.  Beehtel,  for  81,107,  and  sixteen  shares  to 


THE  CAROLENA. 


353 


'arofo/fi,  iiiid 
10  was  ill  11(1 


e  sealing  busi- 
tbree  years. 

ith  tlie  sealiuji 


)  to  that  time  ? 

ipe  of  any  kind 
it  in  any  ship! 


Jiechtel's    brother, 


for 


in  his  owu 
laim  No.  14, 
Vlunsie  knew 
:es,  disclosed 
le  entire  title 

18th  day  of 
le  (conveyed 
s  partner  in 
1  to  William 
^ners,  tliirty- 
Munsie  and 
i\  shares  to 
en  shares  to 


M.   X.    lieclitel,   Andrew    J. 

si. 107. 

.Miinsic  liad  testified  in  the  Carolci/tf  case  that  hew.,  104,  line 
|)iircliased  tlie  I'atlijindcr  at  Haht'ax  in  the  year  ISHo,  ^^' 
at  a  cost  of  abont  84,500,  "or  within  a  few  dollars  of 
it,  (»)ic  way  or  the  other,"  Accordingly,  although  th<^ 
ailidiivits  filed  at  Paris  in  connection  witli  the  claim 
i)\'  the  J'atliJiiKlcr  did  not  disclose  that  Andrew  J. 
Ik'clitel  had  any  interest  whatever  in  the  Pathjitider 
or  in  its  voyage,  Munsie  decided  that  two  such  j)ecul- 
iiir  transactions  appearing- on  the  register  would,  per- 
haps, not  be  viewed  in  the  lig'ht  that  he  \  ould  have 
tlu'iii,  and  although  not  testifying-  on  direct  exaniina- 
tioii  in  the  Pathfindrr  claim  that  Hechel  iiad  any  in- 
terest in  the  Pathfinder,  he  said,  on  cross-examination, ,.  jgg^  jj^^ 
tlint  Mr.  Bechtel,  although  he  had  no  interest  in  the  21. 
I'dtlijinder,  was  interested  in  the  voyag-e  and  venture 
ill  the  year  1889,  He  also  stated  tnat  Hechtel 
a((|uired  an  interest  in  the  venture  of  the  Vidhfinder 
ill  the  year  1886.  Tliis  is  a  positive  denial  of  the 
sUttcuient  of  Andrew  J.  Ihchtel,  that  he  was  ttoi  intcr- 
I'sftil  in  the  sealiuf/  business  until  about  three  f/ears 
prior  to  the  time  that  he  wa^  testifying,  whieh  would  be 
1s<j:>  or  1893. 

Munsie  had  testified,  moreover,  on  direct  examina- 
tion, that  the  total  cost  of  the  Pathfinder  was  i^4,428. 
The  sum  of  the  two  mortg-ages  appearing-  on  the 
registers,  as  given  to  the  Bechtels,  would  be  S2,214, 
or  one-half  the  value  of  the  Pathfinder.  These  pecul- 
iiir  proportions  existed  in  the  case  of  the  Carolena, 
iiltliough  Mr.  Munsie  there  endeavored  to  establish 
that  he  had  paid  money  in  addition  to  the  considera- 
tion expressed  in  the  bills  of  sale,  in  order  to  avoid 
the  necessary  conclusion  that  Bechtel  was  an  equal 
owner.  But  Patrick  Hickey,  who  swore  that  but 
^2,000  was  paid  for  the  vessel  when  Munsie  purchased 
her,  contradicted  him  and  proved  conclusively  that  the 
B  s 23      ■  ■  '1 


^mm 


iilli 


354 


THE  CAROLENA. 


277. 


moi't^ii<iv  to  lioclitel  on  tlie  ('(irolciid  was  oiic-lialtits 
value. 

The  (Ictiuls  of  the  ('ross-cxMiiiIiiiitioii  of  Miiiisic, 
reliitivc  to  the  transMctioii  with  licclitcl  concci'imi;; 
tlic  I'dflijiiidcr,  and  wliicli  iire  fomid  in  his  cross- 
examination,  Hecord,  15(iii  to  lAlil),  estahUsli  tlic  ('(tn- 
viction  tliat  Beclitel  was  a  half  owner  of  the  I'dfli/iiidn: 
as  he  was  a  half  owner  of  the  Carolriia. 

In  the  Arji'uinent  on  behalf  of  (ireat  Jiritaiii  it  is 

admitted  that   Hechtel  was  (_'([nally  interested  in  the 

Exh.  14,  U.  venture  of  the   I'dflijimlrr  in  1.S8!).     I'he  mort;iJi<>es 

I'j^jj^l' 27,;".  which  are  in  evidence,  exe(;uted  l)v  Munsie  &  (^iiriic 

Exh.  15,  i;.  to  Hechtel,  have  the  same  i)ecnliar  characteristics  iis 

Exbs."    p! the  mortr^ag'es  executed   on  the  Carolcna.     Tlnji  (k 

not  hear  intrtr.st,  flic  interest  clauses  heing  erased. 

An(h'ew  J.  Bechtel  testified  that  lie  was  not  inter- 
ested in  any  slii|)  in  the  sealing-  business  until  about 
three  years  before  the  time  he  was  testifying.  This 
was  before  Munsie  had  decided,  in  order  to  attempt 
to  save  the  Carolcna  claim,  to  acknowledge  that 
Bechtel  was  interested  in  the  venture  of  the  Path 
finder  \\\  the  year  1889,  and  to  give  the  history  of 
their  dealmgs  in  the  years  1886,  1887,  1888,  and 
1889. 

The  oiil}  conclusion  which  can  be  drawn  from 
the  testimoii}^  and  from  the  exhibits  found  in  the 
Record  in  connection  with  these  two  claims  is  that 
Andrew  J.  Bechtel  was  a  half  owner  of  the  Carokmi 
at  the  time  of  her  seizure  and  a  half  owner  of  the 
Pathfinder  at  the  time  of  her  seizure. 

The  impression  created  by  these  witnesses  at  Vic- 
toria w^as  that  these  mortgages,  as  said  by  one  of  the 
High  Commissioners,  were  "wdiitewash  mortgages" 
and  that  im})ression  was  never  removed  and  a  reading' 
of  the  Kecord  does  not  iioav  remove  it. 

In  the  schedule  a])pended  to  the  claim  of  the 
Carolcna  in  the  British  Argument  the  claim  is  made 
"Net   value   of    approximate   catch   for   1887    was 


THE    CAItOLENA. 


865 


sj.ooO."  No  ('\i(l('iice  is  citi'd  to  su])|tort  this  cljiini, 
Mild  iiiiisimicli  iis  ii  decree  of"  ('oii(leimi)ition  iiiid  tor- 
fcifure  was  entered  jiiid  tiie  \  t'ssel  iieNcr  returned  to 
licr  owners,  iind  therefore  ji  totsd  h>ss,  no  basis  for  this 
chiiiii  exists. 

The  claim  was  made  at  tlie  liearinji'  tiiat  l)y  reason 
of  rlie  h'tter  of  Xinemher  1,  ISSS,  from  the  I'nited '^•' ^05. 
Stii^',-.^  marshal  for  the  District  of  Alaska  to  "Mnnsie  t'c 
('(!.,"  inforniinji'  them  an  order  had  been  entered  releas- 
iiiii'  the  CarolciKt  t(>  her  owner,  the  case  became  one 
(it  detention  and  partial  loss,  rather  than  total  loss. 

The  reply  of  Sir  L.  S.  Sackville-West  to  Mr.  Hayard,  'i-««- 
the  United  States  Secretar^•  of  State,  acknowledyinii- 
tlic  receipt  of  a  note  dated  the  3d  of  Febrnary,  1S!S7, 
contained  the  information  that  orders  had  been  issued 
diicctinfi"  the  discontinuance  of  all  ])roceedin<>'s  and 
tlic  (lischar<ie  of  the  vessels  seized  in  188G  is  in  the 
Record.     This  letter  bears  date  February  4,  1S87. 

On  the  26th  day  of  July,  1887,  the  (lejjuty  min- 
ister of  fisheries  for  the  Don  Inion  of  Canada  wrote 
as  follows  to  Munsie  (C  Co.: 

Dear  Sirs:  I  have  to  acknowledge  the  receipt  of  your r.,  367. 
letter  of  the  19th  instant  addressed  to  the  minister  of  marine 
and  fisheries,  in  whicli  you  state  "we  have  not  received  a 
single  word  from  the  United  States  Government  about  the 
release  of  the  vessels,"  referring,  of  course,  to  those  seized 
last  season. 

Oil  the  2d  of  April  last  1  communicated  to  you  the  deci- 
sion of  the  President  of  the  United  States,  in  so  far  as 
releasing  the  vessels,  etc.,  which  letter  you  acknowledged. 

Have  you  made  any  application  for  the  surrender  of  the 
vessels,  or  have  you  reason  to  supi)08e  the  United  States 
Go\ eiiiment  would  communicate  the  action  to  you  by  other 
means  than  the  ordinary  official  channel? 

i'liis  department  lost  no  time  in  communicating  the  deci- 
sion in  question  to  you,  with  the  expectation  that  you  icouUI  at 
once  talte  steps  to  refjain  possession  of  the  vessels. 
I  am,  etc., 

John  Tilton, 
Deputy  Minister  of  Fisheries. 


356  I^E  CAROLENA. 

This  letter  (iw<*l(>Mes  tb.it  a.>>  ecU'ly  .in  A])r!l  "J,  ls>«I, 
Mr.  Muusie  whs  tulviwd  tliat  he  (-oald  ohTaiu  his  ^l'^• 
(sel  V)v  goiiiji' to  rnahiska.  He  took  uo  styps  towinl 
retakiiiji'  posiH«^hi«»ii  of  the  vensel,  ami  treated  her  as  a 
total  h>Ks.  It.  ;iT  this  time.  Miiiut^ie  had  taken  st»'|i> 
to  reelaini  hit*  j>ioj>eit\'  there  miji'ht  he  soiiu-  i)asi> 
t<)r  a  claim  of  det^iititm;  but  .solely  hetjauHe  at  a  niiuh 
later  time,  siud  jafter  the  vessels  had  Iteeome  wortli- 
loss,  the  IJuitied  .*nates  formally  oi:ere«l  to  return  the 
pjn^perty  lor  diplomatie  reasons,  the  fact  that  tin;  owner 
liiiriKelf  had  aba\...  >ned  the  veswel  and  treated  her  as 
a  t«»tai  loHf*  is  n«  r  r -^-moved. 

TAr  ocsm'l  wax  i>  i>uh'n'(l  to  tlip  nivmr  in  April,  JHSh 
(mtl  flu-  feini'fr  irfu.sf/.  The  subsequent  tender  on  the 
psETt  of  the  United  imates  has  uo  bearing-  upon  the  na- 
ture of  the  claim,  l>«-i-ause  ])rior  thereto  the  vessel  had 
lj«eu  considered  and  treated  mjs  a  total  loss  by  her 
owners. 


the  thornton. 

Claim  No.  2. 


The  TItoniton  was  a  .scliooner  of  22. 3<)  registered 
rolls,  with  auxiliary  steam  power  of  small  (•a])aeity. 
Ill  I'ehriiary,  1886,  she  was  chartered  hy  Joseph 
Hoscowitz,  and  em])loyed  in  sealiii<i'  under  the  direc- 
tion of  .lames  I).  Warren,  they  heinji'  efpially  inter- 
ested in  the  profits  of  her  voyage. 

On  May  31  the  vessel  left  the  we.st  coast  of  \'an- 
(diiver  Island  for  Hering  Sea,  which  she  entered 
July  2  in  tow  of  the  J )<>l /thin.  She  commenced  seal- 
iiiii'  on  the  oth  and  continued  operations  until  she  was 
seized  hy  the  United  States  r<Menue  steamer  Conri)/, 
It  (!  (('dock  p.  ni.,  Au<^ust  1,  at  whicli  time  she  had 
on  hojird  403  seal  kkins.  ( )n  Aufi'ust  2  she  was  towed 
to  I'nalaska,  where  she  was  sul)se(piently  disman- 
rlctj  antl  beached.  ( )n  Aujiust  2.S  she  was  libeled 
li\-  the  United  States  attorney  in  the  ilistrict  court  of 
Ahiska,  and  a  denuuTer  and  answer  were  filed  Sep- 
reiiiber  20  on  behalf  of  .James  I).  Warren  as  owner. 
On  October  4  a  decree  of  ccmdemnation,  forfeiture. 
Mild  Side  of  the  vessel,  her  tackle,  aj)|)ai'el,  and  caro'o 
was  entered.  A  motion  was  made  on  tlu'  same  day 
l>y  the  proctors  for  the  claimant  askinji*  to  have  the 
decree  set  aside,  which  being'  overruled,  a  notice  of 
appeal  was  filed  on  behalf  of  the  (daimant 

The  apj)eal  was  never  jierfected  and  no  proceetl- 
iiiL^s  were  taken  to  arrest  the  sale  of  the  pro})erty. 

In  the  autumn  of  1886,  and  ])resumably  a  short 
nine  after  Warren  received  notice  of  the  decree  of 
toiteiture,  he  purchased  the  schooner  Marij  Tai/lor  to 


!{..  itin,   line 

10;      1613, 

line  10. 
W..  I0H7,  lino 

IL'. 
K.,  1!»78,  line 

11». 


App.H.  11.92, 
line  32. 

A])]).  H.  p.  9"), 

lini-  32. 
R.,  198,"),  line 

Aiip.  B,  p.9H, 
lin."  13. 

App.  H,  ]>.!»«, 
lino  25. 


App.  B.  p.  87, 

line  52, 

Ajip.  B,  p.8!», 
line  12, 

Ajip.  H,  p.  !tO, 
line  1. 

App.  It.  p.  90, 
line  11. 


357 


358 


THK    THOIJNTON. 


take  tlie   jilacc  of  tlic  vessel   seize<l. 
upon  tlie  siil)j<H*t  is: 


Ilis   testiiiioiiv 


R.,  line,  line     Q.  After  the  sei/iire  of  tbe  Thornton  did  yoti  provide  a 
62.  vessel  to  take  her  phice  in  the  fleet? 

A.  Yes. 

Q.  Wliat  was  tlie  one? 
A.  The  Maiji  Tai/lor. 
V    iins  lino     ^i-  When  did  yon  buy  the  jVf//'^  Tai/lovf 

U      '       ■     A.  In  the  faH'of  188(5. 
T>    11W1  1-         Q-  What  did  yon  nse  the  jlf^aw/ 7>n//or  for  afrv  vou  bought 

JK.,  IIM,  line  1         J,  "  '  '  .  o 

26.  lier* 

A.  Sealing. 

Q.  Wliere? 

A.  On  the  coast  and  in  Uerinj;-  Sea. 

Q.  For  what  sealing  season  ? 

A.  1887. 

Tlie  jmrclinse  of  tliis  vessel  for  the  .sole  object  of 
replocinfi  thr  T//ornfotf,  lier  eiiiploynient  for  the  same 
pur})oses  as  tlie  seized  schooner,  the  abandonment  of 
tlie  a})])eal  to  the  United  States  Suju'eine  CN)nrt,  and 

^'^g]^'^'  """tlie  entry  of  Fe})rnary  28,  1887,  in  Warren's  journal 
that  the  vessels  were  to  be  sold,  establish  eoiu'hisively 
that  the  schooner  became  a  total  loss  to  her  owner 
and  was  so  treated  by  him. 

At  the  time  that  the  vessel  was  ancliored  in  the 
harbor  of  Unalaska,  an  inventory  was  made  bv  an 
officer  (A'  the  Conrit/,  which  was  offered  in  evidence 

ggj^P-    ^*' by  (ireat   J^ritain,  ;uid  is  a   ))art  of  Exhibit  No.  45 
Ai).  ]3,_  p,  ((t.  B.),  claim  N<>.  2.     There  also  a] )pears  in  tlie  same 

85,  line  lo.  j]xhil)it  a  list  of  the  arms  and  annnunition  found  on 
board  the  schooner  at  the  time  of  seizure.  The  arti- 
cles contained  in  the  inventor}'  and  in  the  list  were 
delivered  to  the  United  States  jnarshal  at  Sitka,  and 
were  the  only  property  seized. 

In  the  schedule  which  appears  in  the  op))osiiu>'  Argu- 
ment setting-  forth  in  detail  the  damages  claimed  for 
the  Ihomfott,  there  is  included  an  item  for  "Premimn 

^•' ^^^^'  ^^^'^  of  insurance  ))aid,  8410."     Four  policies  of  insurance 

R.,  1091,  line  upon  the  schooiier  Thornton  and  her  cargo  were  offered 
in  evidence  by  the  claimant.     0'"  these,  one  upon 


Br.Arg.,102. 


3. 


THK  THORNTON. 


359 


testiiiioiiv 
'Oil  provide  a 


or  you  boiiglit 


iole  object  (if 
■or  the  same 
iKloiinient  of 
3  Court,  and 
reii's  journal 
conclusivelv 
)  her  owner 

lored  in  the 
made  by  an 
in  evidence 
libit  No.  45 
i  in  tliesaine 
on  found  on 
).  Tlie  arti- 
:he  Hst  were 
it  8itka,  and 

)osin<>-  Ai-<iu- 
chiinied  for 
"  "Preiiiiuin 
■>£  insurance 
were  offered 
,  one  upon 


till-  inryo  e.\i)n-e(l  on  ,]\\\\  3,  1S8(».      1  wo  others,  one  ''••  ^'^'^''  ^'"® 
1      I     11         1  ^1       ■  ^1  •     1  1      ^-;  line  50. 

u]i(iiirlu'  luiJI  an<lan(»tlier  upon  the  carfj^o,  are  nidorsed, 

"(  Miifeled  thi^s  policy  on  and  from  the  "Jnd  Aujiust, 

ii>k  liavni<>'  ceased  thr(Ui*i-h  vessel  havinjr  been  seized 

l)\  the  I'nited  States  (iovernnient  and  )('turned  three 

periods  of  lis.  Kid.  [and   13s.  4d.j   a   period."     'I'heK.j.  loito,  line 

(ine  remainin<(  policy  was  for  €600,  at  the  rate  of  8    '" 

niiiucas  |)er  cent. 

The  risk  was  declared  to  commence  on  the  11th 
Mmvii,  1S86,  and  to  end  on  the  3rd  March,  ISST,  both 
(lays  inclusive.  The  owner  of  the  vessel  had  tluM-e- 
f(»re  I'eceived  the  benefit  o'f  this  policy  up  to  the  time 
of  seizure,  and  at  such  time,  the  liability  of  the  under- 
writers havin<i'  ceased  thr<^)uo'li  the  act  of  seizure,  it 
was  the  duty  of  the  owner  to  have  secured  the  rebate 
for  the  canceled  policy,  wliich  he  undoubtedly  did. 
Ill  relation  to  the  poliides  which  were  canceled 
throuyh  the  risk  having-  ceased  on  the  2nd  xVuj>ust, 
and  the  policy  which  e.vpired  on  the  3rd  July,  the 
(i\\  uer  had  received  thd  full  benefit  of  his  ex])enditure. 
It  is  therefore  tdaimed  by  the  United  Stales  thai  no 
iiward  should  be  made  the  (daimant  under  this  item. 

riuA  (daim  for  "value  of  articdes  in  inventory  not 
prdjKn'h'  belonfifing'  to  t'  ship,  on  board  at  the  time 
ot'  seizure,"  is  based  according  to  the  mar<;^inal  refer- 
ence in  the  British  Argument,  n])ou  a  schedule  pre-^'^g^^^'  ^'"* 
\)'a\\h\  ivoxw  inventories  ap))earing-  in  the  lojf  of  the 
s(diooner.  As  the  value  set  o})posite  these  articles  is 
jiivcn  bv  James  I).  Warren,  who  was  not  shown  to 
liave  had  knowledge  of  their  condition  at  the  time  of 
sci/in-e,  it  is  to  be  ])resumed  that  they  are  based  upon 
\\  hat  such  articles  would  have  cost  when  new.  These 
vahiations  can  only  be  applied  l)y  allowing  a  reason- 
iildc  deduction  foi-  the  condition  of  the  articles  as 
>li()wn  bv  the  inventorv  taken  bv  Lieutenant  Cant- 

W(dl 


R.,  967,    line 
40. 


The  total  of  the  valuations  given  for  these 
iirricles  by  Ca])tahi  Warren  is  $330.44. 
The  same  statement  mav  be  made  in  regard  to  the 


3G0 


THE    THORNTON. 


valuation  of  thi*  arms  seized  as  o;iven  in  the  Arofu- 
Tuent  on  behalf  of  Great  Hritain,  it  a})])earin<'-  l)v  an 
examination  of  the  mar<»'inal  references  to  the  Heconl 
tliat  tlie  (irtf/ina/  cost  is  the  ])asis  of  the  claim,  without 
any  <le(luetion  havinji'  b(H'n  made  for  the  de])reciatiou 
of  such  firearms,  which  is  excessive  in  Herinj^"  Sea 
because  of  the  ])revalence  of  fogs  and  rains  in  that 


reji'ion 


The  Jvecord  discloses,  in  relation  to  the  item  enti- 
tled "Slop  clsest,  sai/  8125,"  the  followinjr  in  the 
examination  of  J.  1).  Warren: 

R.,  911,  line     Q.  There  is  a  cJaiia  in  that  schedule,  marked  No,  17,  for 
59.  ideutification,  for  dry  so<)d8,  does  that  refer  to  the  slop  chest? 

A.  That  would  be  the  slop  chest. 
Q,  About  how  iiiuch  was  on  the  Thorntonf 
A.  1  suppose  about  SL'oO— !!(200  or  $L'o(). 
Q,  This  is  $49;  would  there  be  an  error  iu  that  statement? 
A.   The  men  may  hare  got  their  supplies  before  they  left  in 
that  cane. 
(J.  At  any  rate  you  remember  there  was  a  slop  chest  ? 
A,  Yes;  they  had  a  slop  chest  on  board, 
(i^.  And  you  usually  carry  $2r)0  worth  of  stuff! 
A,  Tsually  carry  about  that. 

The  United  States  claim  that  there  is  no  evidence 
as  to  this  item. 

In  regard  to  "estimated  value  of  articles  >\  liicli 
were  doubtless  on  boaivl,  which  can  not  now  be 
sj)ecitically  mentioned,"  and  "))eddinj>-,"  there  is  ik. 
evidence  before  the  Connnissioners. 

"  Expenses  and  h;u"dshi[)s  of  crew,  thirteen  ntrn. 
at  SoOO  each,"  which  a])pears  as  one  of  the  items  in 
the  schedule  referred  to,  are  ])ersonal  (daims.  which, 
not  having- been  presented  to  tlu^  Tri])unal  of  Arbi- 
tration at  Paris,  and  not  hi\vin<4'  been  included  in  the 
"additional  claims"  set  out  in  the  preand)le  ()f,  and 
ajtpendix  t<»,  the  Convention  of  February  S.  181lfi, 
can  not  l>e  allowed  by  this  Ilioh  ( 'onnnission,  even 
if  there  was  suiticient  eviikMict  to  estal)lish  such 
claims,  which  the  United  States  insist  there  is  n<)t. 


THK     THOKNTON. 


361 


B,    p. 


Ill  rcf'civnce  to  tlu*  item  for  Icjiiil  cxpt'iiscs  nt  Sitkji, 
tlic  I {('(•» n'd  discloses  : 

*}.  Vou  cliiirge  $500  expenses  at  Sitka  in  connertion  withK..  ')17,  line 
tlie  st'i/ure  of  tlie  Thornton.    Wbiit  does  that  mean  ?  ^•^• 

A.  Legal  expenses. 

(,•.  Legal  exjienses  at  Bitkain  connecticn  with  the  seizure! 

A.  Well,  the  captain  employed  a  lawyer  uj)  there,  or  a 
tinii.  and  it  appears  that  they  had  arranged  to  appeal  these 
eases,  and  he  drew  on  nie  for  .<<oOO. 

i).  That  is  tlie  reason  that  you  t  barge  tliat.  As  a  matter 
of  I'iU't,  .vou  have  not  paid  it  f 

A.  I  did  not  pay  it.  He  has  been  paid  some  numeif  thai  we 
tliiiufilit  was  right.  I  told  him  1  had  put  the  claim  in.  and  if 
it  was  allowed  he  would  get  it. 

(,).  Who  was  that? 

A.  Clark.    1  forget  the  name. 

TIk,'  cnso  of  till'  Thoiiifoii  was  not  Jijtpciiled,  iiiid 
the  iiniount  of  tlie  retaiiuT  deinuiulod  hy  Clark  was 
excessive,  the  services  consistinj^'  in  filin<>'  a  demurrer App. 
iiii'l  answer  to  the  hl)ei  For  these  services  he  ap- 
jicars  to  have  been  ])aid  a  reasonable  sum,  but  the 
iictiiid  amount  is  not  in  evidence.  The  United  States 
rlicicfore  claim  that  the  owner  did  not  become  obli- 
jratcd  to  |»a\  any  further  sum,  and  as  the  amoinit 
|i;ii(l  is  not  established  it  can  not  be  allowed. 

The  it(Mn  "for  trax  eliuju',  hotel,  and  other  necessary 
tNlKtises,"  in  connection  with  the  said  seizure,  a  claim 
lit  ^1,000  is  stated  J)»\  Captain  Warren  to  have  beenK-»  i''^ 
-j'i4  (I  l)iilJ;  '^/imJ'  He  stated  that  in  connection  with 
rliix  \\i'  made  tw'o  tri])s  to  ( )ttavva,  one  to  kSitka,  and 
rlijit  tHH'  of  his  trips  to  Ottawa  was  extendcvl  to 
U  ;i>liin}iron  in  ISilO.     Tlie  l\('cord  further  disclos<»s: 

<»».  And  you  charged  for  traveling  expenses  $1,<>()0  in  eachR.,  !>17,  line 

case '.'  ■8> 

A.  I  do  not  remember  what  it  is  in  the  other  cases. 

<,».  lUit  you  went  on  business  of  all  the  seizures  of  1887 
iiK^.-ther  with  that  of  the  Thornton  in  1880? 

A.  I'es. 

<»>.  Vou  charge  $1,0(»0  in  the  Thornton  case.  You  do  not 
liicui  to  say,  do  you,  Captain  Warren,  that  you  expended 
••^l.dOO  in  traveling  for  the  Thornton  in  1886? 


liu« 


362 


THE  THORNTON. 


A.  No;   I  hiive  not  stated  that  I  spent  a  ■'j'ljOOO,  a  (•onsid 
erable  time. 
Q.  You  undertook  all  yo.ir  claims  together  when  you  went 
.  to  ( )ttawa '! 

A,  When  1  went  to  Ottawa;  yes. 

WaiTiMi  at  tlu'  time  was  the  re})reseiitative  of  the 
other  claiiiuuits  against  the  Imited  States.  The  evi- 
E.,  9(17,  linedence  fh^es  not  esta})hsli  that  in  the  case  of  this 
vessel  the  sum  stated  was  (.•xi)eii(le(l,  and  from  a 
com|>aris(>n  of  the  amounts  charj^ed  tlu^  otlier  claim- 
ants as  their  pro  rata  share,  which  was  about  8l")(i, 
the  claim  here  made  is  not  only  excessive  and  ex(»rbi- 
tant,  but  can  not  be  legally  recovered  against  the 
United  States,  as  any  such  expense  was  incuiTed  iu 
the  ))reparation  of  the  claim  for  presentation  to  the 
government  at  Ottawa. 

Thii  item  "Fee  to  counsel,  and  for  other  legal  ex- 
penses in  connection  with  the  [)re})aration  of  the 
claim,"  is  founded  upon  no  evidence  of  the  liability 
of  the  claimant  U)  pay  su(;li  smn,  or  of  the  services 
which  were  performed  for  which  the  charge  is  made. 
It  is  therefore  claimed  that  there  is  no  basis  on  which 
an  award  can  be  made  for  this  item. 

The  charges  in  the  schedule  of  86,958  for  "bal- 
ance of  catch,"  8!)00  for  coasting  purj)oses  for  three 
months, and  of  85,000  for  "estimated  coast  and  iieriiij; 
Sea  catches  for  the  year  1887  (net  value  of)"  are  for 
prospective  profits,  and  can  not  be  allowed  in  any 
event,  the  vessel  having  become  totally  lost  to  lier 
owiun-. 

The  claims  for  the  "value  of  the  vessel,  87,000, 
ex])enses  and  hardships  of  crew,  13  men  at  8500 
each,  86,500,"  and  the  })ersonal  claims  of  Guttormseii 
and  Harry  Norman,  have  been  c(msidered  elsewhere, 

The  damaoes  sustained  bv  rlie  claiuiant  b>'  reason 
of  the  seizure  of  the  Thornton  were  the  value  of  the 
vessel  in  the  condition  she  was  when  seized,  on  the 


Ante,  p.  305. 
Ante,  p.  819. 


THE    THORNTON 


3(13 


iimrkit  at  Victoria  at  that  time,  tlio  market  value  of 
I, .IK  -halt'  of  the  articles  not  pntperly  iiu-liided  a»  a  i)art 
,it  tlif  vessel  itself  in  the  condition  and  at  the  time 
hvlicii  they  were  taken  from  the  schooner,  and  one- 
half  of  408  seal  skins  at  the  price  rulin^-  in  the 
iiKirket  at  Victoria  at  the  time  when  the  vessel  would 
in  the  natural  course  of  events  have  discharg-ed  her 
rargo  at  that  port  in  1886. 


THE  ONWARD. 


Claim  No.  3. 

App.  B,  101.      rpj^^^  Omvard  was  a  schooner  of  35.20  re<>-istere(! 

tons,     (Miarlos  Spring-,  a  subject  of  Great  Britain,  and 

App.  B,  7<i,  Alexander  McLean,   a  citizen  of  the  United  States, 

liuc  20.  lie  c     /  <     ct        •  1 

were  j)artners  under  the  nrni  name  ot   I'.  S})nn<i'  & 
Co.,  and  e<iual  owners  of  tlie  vessel  at  the  time  of  Iut 


sei/AU'e. 


In  1886,  after  a  sealino-  trip  in  the  .s])rin<»-,  she  tr 


aiis- 


E,,863,liiie5.  [^J,5|)p(^ij  her  skins  on  the  west  coast  and  sailed  for 


App.    15,    r)0, 
liue  59. 

R.,  877,  liue 

38. 
K.,    (j4,    line 

10. 


App.   B,    (U, 

line  10. 
A))p.    U,    65, 

liue  20. 
App.  B,  p.  58, 

line  40. 

App.  B,  p.  68, 
line  30;  p. 
71,  liue  24. 


Beriiif;^  Sea, 


carrvin<i' 


9   canoes.      She  commenced 


App.  H,  p.  74, 
line  40. 


sealin(>-  in  J  Wing-  Sea  on  July  12,  coiitinuing  until 
Aug-ust  2,  at  which  time  she  had  taken  907  skins,  507 
of  which  had  been  transferred  to  the  Favourite.  On 
Aug-ust  2,  between  4  and  (>  o'clock  in  the  morninj^, 
the  Omvard  was  seized  bv  the  United  States  revenue 
steamer  Coriv'm.  She  was  towed  to  Unalaska,  where 
her  canoes  and  seal  skins  were  rem(>ved  and  turned 
over  to  the  United  States  marshal  at  Sitka. 

On  Auj^ust  28  the  Onward,  her  tackle,  boats,  and 
caro-o  were  libeled  l)y  the  United  States  attorney  for 
the  district  of  Alaska,  and  on  September  20  a  libel 
and  answer  were  filed  <^n  behalf  of  Charles  Spriiiji' 
&  Co.,  claimants  of  the  property.  On  ( )ctoljer  4  a 
decree  of  condemnation,  forfeiture,  and  sale  was 
entered  against  the  schooner,  her  outfit,  canoes,  and 
cargo.  A  motion  on  the  same  day  was  made  on 
behalf  of  the  claimants  to  set  aside  the  decree. 
was  filed  on  the  same  day  on  behalf 


Notice  of  appeal 


364 


of  the  claimants.  The  ajjpeal  was  never  perfected, 
and  no  further  proceedings  were  had  on  the  part  of 
claimants  to  recover  possession  of  the  schooner. 


THE    ONWARD. 


3t>6 


( 111  tho  aotli (lay  of  Deceiiilu'r,  ISSC,  (Mun-lcs  Si>rin<r '*'•,;/•"•  ''"* 
iiiid  Alc'xaiuU'i'  ^IclA'an  entoi't'd   into  an   aoivi'nu'ntAi'p.H.  11.52, 
ili>Milvin<i'  their  ])artnersliij).      In  the  cai'ly   part   of    '"'"-•'• 
lss(J,  (.'.Sprinji'  ct  Co.  owned  tln-ee  vessels,  tlie  Fiinmr- 
ili\  tlie  Kdtr,  and  the  Ouiiard.     In  the  a<i;reeinent  for 
ilissolution  valnations  were  place*!  npcjn  the  h'tivdiiritr 
Mild  Kdfr,  hut  HO  rahfafioH  was  filticdd  hjioh  tlir  ()h/r<in/. 
As  .HcLean  did  not  desire  to  continue  longer  in  thei^.  w-'.  Hue 
liiisiiiess,   Spring'    ]>urchased  his    share  of  the   part- 1{.^  5i,2,  ii„e 
mrsiiip  propert}'  for  about  $1,100,  hut  the  Omvard    ^9. 
ints  not  included  in  the  transfer,  whi(*h  would  have  been 
ilniic  had  the  owners  antici])ated  her  recovery.      A 
liiilt'  interest  in  the  claim  ag-ainst  the  United  States 
for  the  seizure  of  the  Onward  was  retained  under  then.,  wti,  line 
iiiircenient  by  each   partner.     This  evidence  is  con-    '^-• 
elusive  of  the  fact  that  the  Onward  wi\^'A  total  loss  to 
her  owners,  and  Avas  so  considered  by  them. 

Wiiile  the  schooner  was  in  the  harbor  of  Unalaska 
iiii  inventory  was  made  by  an  oflicer  of  the  Corwin, 
jiivin'''  a  detailed  statement  of  the  ])r()perty  seized 
Mild  its  condition.  This  inventory  was  otiered  in  evi- 
dciicoon  behalf  of  theclaimant,  and  ai)})earsas  Exhibit  ^'.i',.  ^''.  P- 
No.  32  (G.  ]}.),  Claim  No.  3.  .•.o,i.ne.^o. 

There  also  api)ear8  in  the  testimony  taken  durino- 
the  proceedin<>-s  at  Sitka  a  statement  of  the  arms  and^pj,.  u^  ,;,-,, 
iiiiiinunition  delivered  by  the  Corwin  to  the   United      °e20. 
States  marshal  at  Sitka. 

The  articles  contained  in  the  inventor}'  and  in  the 
last  statement  referred  to  are  the  only  pi-opert}-  for 
wliich  the  United  States  is  liable  in  any  event.  The 
articles  covered  in  the  item  "unconsumable  sealing 
•  mttit"  are  included  in  the  inventory. 

(nider  the  schedule,  which  ap])ears  in  the  Argument 
I'll  behalf  of  the  claimants,  setting-  forth  in  detail  the 
damages  clauned  for  the  Onward,  there  is  included 
an  item  "  Premium  of  insurance  paid,  8240.''     The  ^■^g'*''**'  ^'°® 
iiiariiinal  reference  ij-iven  is  to  a  statement  of  Charles 


36() 


THK    ONWAKl). 


S|»rin;;',  ill  wliicli  it  ii|)])('iirs  tluit  lie  piiid  (»ri^iii!illv  ti 
ilisiiDmcc   on    tlic    vessel    S2(!(l,  receiNiii^i'   si  reliiitc 


"t 


(»\v    when    This  insurance  \v;i> 


tl 


>^2().  lie  does  not  slw 
etl'eeted,  n(»r  at  what  time  tlie  |»(diey  was  caiicclc 
It  is  ejaime*!  on  the  part  of  the  rnit«'(l  States  tliii 
as  tlie   own(M"s  had  received    the  I>enelit  ot"  the  ii 


isiir- 


aiK-e  to  the   time  ot"  sei 


ihlvth 


iK-e  TO  tlie   time  or   seizure,  and   presuinaniN'  tik 
rel)ate  from  tiiat  time  to  the  expiration  of  the  jxilicv, 
the\'  sustained  no  (hnnafje. 

the  cliaro-e  for    "Nine   canoes  at   82H,   S2r)2,"  i> 

obtaiufid  from   the  evidence  of  Sj)rin<;',  in   wliicli  Ik 

R.,  H(5;i,  line^^'iV!^  ^'''it  the  caiioes  witli  their  outfit  were  worth,  lie 

t.44.  "would  say,  s25  each — >^'25  or  82S — anywhere  in 

that  uei<>lil)orhood." 

He  also  state<l  that  he  had  a  lien  on  the  canoes  for 
'22.    '        advances  made,  and  that  they  were  [)artly  owned  l)y 
him  and  partly  by  the  Indians. 

In  his  cross-examination  he  testified: 

R.,  874,  line  Q-  '^^^  advance  that  you  made  to  the  Indians,  however, 
59.  '  is  a  part  of  the  money  which  you  charged  as  paid  to  them, 
is  it  not? 

A.  In  some  cases. 

(J.  80  if  you  recover  for  the  value  of  the  canoes,  so  far  as 
your  lien  is  concerned,  and  the  money  which  you  claimed  to 
pay  the  Indians  you  would  be  recovering  the  same  money 
twice  in  some  instances'? 

A.  In  some  instances;  but  in  such  a  case  as  that  the 
Indians  would  be  charged. 

i}.  What  do  you  mean  by  that? 

A.  When  I  say  the  Indians,  I  mean  the  Indian  hunters 
would  be  charged,  that  would  be  deducted,  and  in  other 
cases  it  was  a  direct  purchase  from  the  Indian  that  owned 
the  canoe  in  order  to  make  the  complement  to  send  out. 

Q.  That  was  in  the  case  where  you  directly  purchased  the 
canoe  ? 

A.  Yes. 

Q.  How  many  canoes  did  you  directly  jfurehasef 

A.  I  should  iliinlc  some  three  orfoxir. 

The  United  States  insist  that  in  view  of  this  te^?- 
tiniony  of  Sjn'ing,  one  of  the  owners,  this  claim 
should  be  confined  to  the  three  canoes  actually  }mi'- 
cliased,  and  that  their  value  should  be  fixed  at  the 


A.  ii 

(^ 

A. 

Q. 

A. 

yoii? 
A. 

A. 

not  rt 


THK    ()N\VAKI>, 


367 


ori<«iiijillyt,ir 
^'  fi  rehiitcot 
nsiirjiiicc  \v;h 
^v;is  ('{ilicclcil 
Stiltos  tliat, 
<>t"  tiic  iiisiir- 
iijil)ly  the  full 
»t'  the  ])ulicv, 

2S,  S2;Vj;'  i> 
,  ill   wliicli  li( 

ere  wortli,  iic 
-anywlR'rt'  in 

the  canoes  for 
i\y  owned  by 


(liaiis,  however, 
s  paid  to  them, 


canoes,  so  far  as 
I  you  claimed  to 
be  same  money 

se  as  that  the 


[udiau  hunters 
;,  and  in  other 
ian  that  owned 
o  send  out. 
r  purchased  tlie 


ise? 

X  of  this  tes- 

i,    this   claim 

actually  piii- 

fixed  at  the 


51. 
U.,H77.1iiie2. 


liiwi  r  H;iiire  ;>iveii  hy  tiie  witness.     The  money  piiid 
the  iiidians  is  included  in  the  \ahie  ol"  the  s«';d  skins. 

All  item  appears  in  the  schedule,  "'rwehc  ^uns,  a1 
>■.',"..  >>:;()<>."     The  testimony  of  Spnuj-'  in  relation  to '^-^y'*'"''^'  •*°® 
this  ciiar;^*'  shows  that  the\"  were  l)reech-loadin<4'  and 
iiiiiz/le-loadin^-  shotguns.      He  also  says  of  them  thatR.,  K7ti,  line 
"tliex  were  an  old,  h»\v-;irade."  ;^un:   and  that  a  por 
lidii  of  them  were  owiumI    h\'   the   hunters,  altoiit  six 
di'  xN'eii  Ixdon^i'in;^'  to  the  <»wners  of  the  vesstd. 

Tlie  I'nited  States  (daim  that  the  j^uns  whi<*h  were 
;i(rii:dl\-  the  property  of  the  owners  of  the  scho(»ner 
me  the  only  ones  which  can  lie  coiisidei'ed. 

The  item  "Cost  of  defense  at  Sitka,  8500,"  is  based 
oil  the  following'  testimony  of  Si)rin}^': 

{).  Now,  were  you  put  to  any  legal  expense  at  Sitka,  or  |{.,  870,  line 
was  ther<'  a  charge  made  against  you  ?  .")«. 

A.  There  was  a  charge. 
Q.  What  was  the  amount  of  the  charge  ? 
A.  fioOO. 

(^  Did  your  captain  draw  on  you  for  it? 
A.  Xo;  he  did  not. 
Q.  Did  you  actually  pay  it? 
A.  It  is  not  actually  paid,  but  it  will  have  to  be. 
Q.  Were  you  sued  for  it,  and  judgment  obtained  against 

VOU? 

A.  Yes. 

Q.  J)o  you  know  how  you  were  summoned  to  appear? 
A.  I  think  it  must  have  been  sent  down  to  me;  I  really  do 
uot  remember,  now. 

A  transcript  of  the  judg-ment  here  referred  to  is  not 
produced,  and  no  judgment  could  have  been  recov- 
i'i\'d  under  the  laws  of  the  United  States  by  any  such 
sorxice  as  is  suggested,  and  there  is  no  evidence  to 
Auwx  that  there  was  any  eni])loyment  of  an  attorney 
l)y  the  owners  through  which  they  became  liable 
to  pa}'^  the  amount  charged.  The  legal  services  A-pp.B, 68. 
\vhi(  h  appear  liy  the  Record  to  have  been  performed 
nil  Ijehalf  of  the  owners  at  Sitka  consist  of  the  filing 
of  a  demurrer,  an  answer  to  the  libel,  a  motion  to  set 
aside  the  decree,  and  a  notice  of  appeal. 


,% 


^, 


^, 


.^^^< 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


11.25 


150    ■^~ 


^m 


■  2.2 


140 


I 


2.0 


llllim 

U    IIIIII.6 


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■^  v^V 

^ 


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Photographic 

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23  WIST  MAIN  STRUT 

WHSTIR.N.Y.  149S0 

(716)872-4503 


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K 

^ 


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368 


THE    ONWARD. 


R 


The  item  "Money  given  to  tlie  Indians,  !i!^15,"is 
.,74,  line  presumably  based  upon  a  statement  of  John  Murk'- 


u 


soiiie- 


tieh,  the  mate,  that   he  gave  to  the  Indians 
thing  b(?tween  ten  and  titteen  doUars." 

Tlie  United  States  deny  any  liability  for  this  money 
loaned. 

The  charge  for  '^152  paid  in  connection  with  presen- 
tation of  claim  at  Ottawa,  was  incurred  in  making  tlie 
claim  against  the  United  States,  and  can  n«3t  be  al- 
lowed. 

The  item  "Helyea's  charges,  81,000,"  shculd  not 
be  treated  as  damages  sustained  by  the  claimK?it,  for 
the  reason  that  it  is  exorbitant  and  that  there  is  no 
legal  obligation  shown  by  the  Record  on  the  part  of 
the  owners  to  pay  the  amcmnt. 

The  item  ''Personal  expenses,  8300,"  is  so  gi'ossly 
excessive  that  it  demands  ])articular  attention.  There 
is  no  evidence  that  Charles  Spring  left  Victoria  at 
^50^'^'  ''°*'"^y  time  on  account  of  these  claims,  his  expenses  in 
c(mnection  with  them  being  i)ostage  in  corresi)on(ling 
"with  ditierent  people  in  coimection  with  the  matter, 
both  at  Ottawa  and  Sitka — different  officials  up  there." 
R.,^870,  line  }{^,  .^^\^^^  states  tiiat  he  had  "  been  to  a  great  deal  of 
trouble."     Such  a  claim  should  not  be  considered. 

The  itenis  "Estimated  value  of  provisions,  auunu- 
nition,"  etc.,  and  "Estimated  value  of  articles  which 
were  doubtless  on  board  the  vessel,  but  which  can 
not  be  specifically  mentioned,"  are  based  upon  no 
evidence  whatsoever. 

The  items  "Value  of  vessel,"  "Expenses  and  hard- 
ship of  CV3W,"  and  the  personal  claims  of  Monroe, 
master,  and  Marketich,  mate,  are  fully  discussed  at 
another  ])lace  in  this  Argument. 

The  items  "For  balance  of  catch  for  the  remainder 
of  the  season  1886"  and  "Net  value  of  estimated 
coast  and  Bering  Sea  catches  for  the  year  1887"  are 
for  prospective  profits,  and  can  not  be  allowed  in  any 
event,  as  th*^  vessel  became  a  total  loss  to  her  owners. 


48. 


Ante,  p.  308. 
Ante,  p.  319. 


idimiH,  !f!>15,"i,s 
f  John  Markt'- 
[ndians  "some- 


for  this 


money 


on  with  presen- 

in  makin«r  tlie 

can  not  })e  al- 

)0,"  shculd  not 

le  dainuint,  for 

hat  there  is  no 

on  the  ))art  of 

,"  is  80  g-rossly 
ention.  Tiiere 
left  Victoria  at 
liis  ex])enses  in 

corres])on(ling 

ith  tlie  matter, 
cials  up  there." 
a  great  deal  of 

considered, 
^'isions,  amnui- 

articles  wliicli 
but  whidi  can 
ased  upon  no 

snses  and  liard- 
18  of  Monroe, 
y  discussed  at 

the  remainder 
1  of  estimated 
'ear  1887"  are 
dlowed  in  any 
to  her  owners. 


the  favourite. 
Claim  No,  4. 

'I'lic  Faroiirifc  was  warned  to  leave  Herini"-  Sea  l)v 
the  United  States  revenue  cutter  Richard  7iVrv/<,  at^-|^^^-^»  ^*°® 
iilxtut  2  o'clock  in  the  nun'mnji"  on  the  2d  day  of 
Aiijiust,  iHSn.  The  vessel  did  not  obev  the  warning, 
but  continued  her  sealinj*-  vo^'age  until  the  19th  daj' 
of  August,  when  the  ca})tain  says  he  had  conndete<lR.,  i33i,  line 
his  hunting.  ^' 

Charles  Spring,   a  subject  of  Great  l^ritain,  and 
Cai)t.  Alexander   McLean,  a   citizen   of  the  United 
States  of  America,  were  equal  owners  of  the  Favourite-^  J3Q3  u^^ 
iit  tlie  time  of  the  seizure  in  188G.     The  profits  of  the    11,  line  13. 
voyage  were  to  be  e(iually  divided.     The  partnership 
between  Spring  and  McLean  was  dissolved  in  Decem-  „  ,  . 

l)cr,  188G,  and  at  that  time  the  two  partners  took  an  no. '20,  e™ 
t'([iuil  interest  in  the  claim  against  the  Government  of  hjbits.page 
the  United  States. 

The  Government  of  the  United  States  claims  that 
the  owners  of  this  vessel  failed  to  establish  that  they 
had  suffered  any  damage  whatever  by  reason  of  the 
warning  given  by  the  cutter. 

( 'ai)tain  McLean,  who  was  sailing  the  Favourite  at  ^\^^^'  ^*°® 
the  time  of  the  warning,  testified  that  he  did  not  con- 
sider that  the  claim  was  a  legal  (me,  and  that  he  made 
iio  claim  for  damages.  The  other  owner  was  not 
altoard  the  vessel,  and  no  other  })erson  gave  any  tes- 
timony of  importance  regarding  the  claim. 

Phe  vessel  continued  her  voyage    uninterrupted  ^^.j  *^^'  **°® 
tbioughout  the  entire  sealing  season,  when,  havingu.,  1330,  line 
taken  2,259   seal  skins,  670  being  taken  after  the    ^' 
B  S 24  869 


ilii 


ll 


370 


THE    FAVOURITE. 


R.,  1302, 
50. 


\l.,   1304, 
1. 


R.,  132!t, 
37. 


U.,  1329, 
50. 


R.,  1330, 
60. 


R.,  1331, 
48. 

R..  1333, 
44. 


waniiii}.'',  she  sjuUmI  tor  \'ict()ria,  landed  her  ciittli, 
and  enjoyed  the  benefits  thereof". 

The  understandinji'  between  Charles  Sprinj'-  aiul 
( ^iptain  McLean,  before  the  Favourite  sailed  for  He- 
ring-  Sea,  was  that  the  (jiiestion  of  the  duration  of  the 
voyage  should  be  left  entirely  to  the  discretion  ot 
the  cajjfain.     Spring  says: 

line  Q-  '*i^l  yii  give  any  instructions  when  the  vessel  was 
leaving  as  to  when  she  should  leave  the  Bering  Sea? 

A.  Not  particularly  in  the  case  of  the  FarouHfv.  Know- 
ing that  Alexander  McLean  was  (;aptain  and  an  interested 
party,  I  took  it  for  granted  that  he  would  use  his  own  .judg- 
ment anyway  to  the  best  advantage. 

(i>.  To  what  ettect  was  the  understanding? 

A.  That  he  was  to  stay  as  long  as  possible, 
line     ^h  Von  yourself  had  never  been  in  Bering  Sea? 

A.  No;  not  at  tliat  time. 

t^.  And  you  practically  knew  nothing  of  the  close  of  the 
season  in  Bering  Sea? 

A.  No. 

(^.  And  Oapt.  Alexander  McLean  had  had  former  experi 
en(!e  ? 

A.  Yes. 

(i).  And  you  left  the  matter  to  him  entirely  ? 

A.  Yes. 

i'"e  ('ii|)ta'in  ^IcLean  was  called  as  a  witness  on  belialt 
of  the  I'nited  States,  and  testified  that  he  was  halt 
owner  of  the  F<irountr\  that  he  kej)t  a  k)g'  <>f  the  voy- 

line  Jig«'  <»f  fl't'  J'di'ouritc,  which  he  produced  for  inspecti(»ii. 
Kxaniined  as  to  the  innnber  of  seal  skins  taken  after 
the  warning  was  given  by  the  cutter,  McLean  .said: 

Hue     i).  You  took  about  G7"»  skins  after  you  were  warned? 
A.  Yes,  sir. 

Q.  And  turned  them  over  to  Mr.  Spring  or  your  partners 
here '. 
A.  Yes,  sir;  and  brought  them  to  Vi(!tori.a  and  sold  them. 

Cross-examined  with  reference  to  the  voyage  of  t\w 
Faroiirifr,  this  witness  testifie*!: 

line     q.  Why  did  you  leave  the  sea  on  19th  August  (1880)? 

A.  The  season  was  pretty  well  closed, 
line     Q.  \Vhen  you  left  for  tho  liering  Sea  in  i88«l,  as  master  of 
the  Fdi'oKrifc,  when  did  you  inteiul  to  come  back? 


ded  her  ciitcli. 

L'.s  H[)riii;i-  aiul 
'  sailed  tor  He- 
diinitioii  of  the 
e  discretion  of 


I  the  vessel  was 
ring  Sea? 
wourifc.    Know- 
ud  an  interested 
se  bis  own  judg- 

? 

e. 

H'  Sea? 

'  the  close  of  the 


d  former  experi- 

ness  OH  l)eliiilt 
It  lie  was  liiilf 
\o<y  of  the  voy- 
for  inspection, 
ciiis  taken  after 
IcLean  said: 

e  warned  f 

[)r  your  partners 

ii  and  sold  them. 
voyage  of  the 

igust(188())? 

i8(!,  as  master  of 
back? 


THE    FAVOURITE.  371 

A.  1  intended  to  be  back  here  (Victoria)  between  the  Ist 
luid  lath  of  Septembf  r. 
(^  Had  you  any  special  reason  to  come  back  at  that  time! 
A,  V  ell,  1  used  tO  tit  out  for  that  time. 

iV'ductinji,-  the  time  consumed  in  making-  the  return 
v(t\age  from  Bering  Sea  to  Vict<>ria,  the  Faronfitr, 
liiid  she  arrived  in  Victoria  on  the  1st  of  September, 
wdidd  have  left  liering  Sea  about  the  16th  of  August. 
As  a  matter  of  fact,  she  continued  her  voyage  until 
the  lyth. 

In  the  Argument  on  behalf  of  Great  Britain  the 
testimony  of  McLean,  where  he  says  that  he  could 
liiive  remained  until  the  1st  of  September  "if  the 
wciither  woidd  permit,"  is  cited.  His  testimony  as  to 
what  he  could  have  done,  as  against  his  testimony  as 
to  w  hat  he  did  do  under  the  actual  conditions,  has  no 
weight. 

Captain  McLean  was  examined  regarding  the  timen.,  402,  Hue 


tliiit  he  considered  the  sealing  season  in  Bering  Sea    ^'^• 
closed: 

(f.  What  time  did  you  leave  the  Bering  Sea  in  the  Mary 
Kllni  > 

A .  I  can  not  exactly  say,  but  probably  about  the  20th  or 
-."•til  of  August.    I  am  not  sure, 

(^  From  your  experience  what  would  you  call  the  end  of 
tlie  sealing  season  in  Bering  Sea  in  the  years  188()  and  1887  ? 

A.  Ahout  the  'K)th  of  Ai(<iii,st  I  ivoidd  consider  the  end  of  the 
misoii.     I  lifted  to  leave  the  sea  then, 

<i).  How  many  years  did  you  leave  the  Bering  Sea  about  K.,  103,  lin« 
till'  IDth  or  20tli  of  August?  5t- 

A.  In  188.'J  the  last  lowering  we  had  in  the  Bering  Sea 
was  on  the  10th  of  August.  In  188;")  on  the  23d  of  August. 
In  188(!  on  the  19th  of  August.  In  1887  on  the  19th  of 
August.  In  1888  on  the  19th  of  August,  and  in  1889  on  the 
-."itli  of  August. 

In  the  Argument  tiled  on  behalf  of  Great  Britain  it  is 
elaimed  the  Favourite  materially  changed  her  location, 
mid  left  what  is  termed  "the  best  sealing  grounds." 


The  voyage  of  the  Man/  Elkn  for  th(4  year  lHH6^Cif'*o" 
is  cited  in  the  Argument  as  showing  exactly  the  loca-  GreutBrit- 
tiiHi  of  the  "best  sealing  gnmnds"  in  the  Bering  Sea.    Hue 20.     ' 


372 


THE  favourit: 


Loi 


Het't'iTing-  to  paj^o  2(!H  of  the  record,  line  55,  \\\mc 
the  wituefss  Wilhain  T.  lirajig-  was  examined  relfitivi 
to  the  <>rounds  over  whieli  the  Mart/  I'J Urn  carried  on 
lier  scahno-  operations  in  the  year  1SS6,  this  testi- 
mony is  fonnd: 

Q.  Give  it  to  us  generally  (the  location). 

A.  Between  54^  .{(>'  and  65°  north  latitude,  and  108-  to 
169°  30'  west  longitude.  1  was  always  under  the  impression 
that  that  was  the  latitude  and  longitude  we  were  hunting  in, 

C'aj)tain  AIcLean  did  not  testify  that  he  clianged  liis 
8ealin<»'  ^rounds  on  acconnt  of  the  seizure,  and  refen-inif 
to  the  positions,  as  found  in  tlie  lo«f,  produced  l)y  that 
witness,  it  will  be  found  that  the  Favourite  hunted 
over  this  "best  sealinj^  g^round"  after  the  date  of  tlie 
Mf  of  thewarnin}*'  given  by  the  United  States  cutter.  Her 
feaTisse"  positions  were  August  2,  54°  50',  1(J8°  49';  August  3, 
fex.8,u.s:54°  40',  168°  50';  August  4,  54°  39',  169°  23': 
"^''''"^'"•*- August 5,  54°  35',  168°  40';  August  6,  54°  50',n(l= 
07';  August  7,  55°  06',  170°  40';  August  8,  54°  51', 
170°  49';  August  9,  54°  46',  171°  01';  August  10. 
55°  03',  170°  40';  11th  and  12th,  position  not  ffiven; 
August  13,  54°  45',  168°  1?';  August  14,  55"  24', 
168°  35';  August  15,  55°  30',  169°  10';  August  16, 
56°  15',  166°  45'  30";  August  17,  55°  40',  165°  30': 
August  18,  55°  12',  165°  40'. 

The  position  occupied  by  the  ship  after  the  2d  day 
of  August  is  at  no  time  beyond  171°  west,  and  al- 
ways between  54°  35'  and  56°  15',  which  is  exactly, 
according  to  the  charts  cited  in  the  Argument  on  be- 
half of  Great  Britain  and  according  to  the  Argument 
itself,  "the  best  sealing  grounds"  in  Benng  Sea.  The 
position  occupied  on  the  16th,  17th,  and  18th  of  Au- 
gust is  directly  between  UnimaV  Pass  and  the  Pii- 
bilof  Islands,  the  waters  between  \.  hicli  are  the  "gi'eat 
highway  of  the  seals,"  according  to  the  claimants. 

The  claim  is  made  that  the  Favourite  did  not  change 
her  ground  until  the  4th  of  August,  evidently  to  ex- 


lino  r)5,  wlicre 
miiiied  relative 
'Ulvn  carried  on 
H«6,  this  tcsti- 


iide,  and  1(»8^  to 
jr  the  iuipreHsioii 
were  Imntingin, 

lie  changed  liis 
e,  and  referring 
ixluced  by  that 
vour'ite  hunted 
;he  date  of  tlie 
;  cutter.  Her 
49';  Augusts, 
39',  169°  23': 
i,  54°  50',17(r^ 
rust  8,  54°  51', 
';  August  10, 
tion  not  e-iven; 
t  14,  55-  24', 
)';  August  16, 
'  40',  165°  30': 

fter  the  2d  day 
'  west,  and  al- 
lich  is  exactly 
gunient  on  be- 
the  Arguuienf 
•ing  Sea.  The 
id  18th  of  Aii- 
8  and  the  Pri- 
i  are  the  "great 
e  claimants, 
did  not  change 
vidently  to  ex- 


THE   FAVOURITE. 


373 


|iliiiii  away  the  catches  made  on  the  2(1  and  3d  of 
Aiiuust,  amounting  to  260  skins. 

The  Favomiie  occupied  on  the  5tli  of  August  al- 
ludst  exactly  the  same  })osition  she  occujiied  on  the 
2(1  iiiid  3d,  and  occupied  the  same  })osition  again  on 
the  13th  and  14tli,  and  on  the  16th,  17tli,  and  18th 
wiis  jumting  in  the  most  favora))le  location,  according 
to  the  claimants,  in  the  entire  Bering  Sea. 

Tile  (daim  is  also  made  that  she  only  lowered  her 
canoes  on  the  2d,  3d,  10th,  and  19th.  The  basis  of 
this  statement  is  obtained  from  page  5,  known  as 
Kxhibit  No.  9,  United  States  claim  No.  4,  of  the  book 
kept  by  Oapt.  Alexander  McLean,  in  which  the  total 
number  of  seals  taken  was  recorded,  l^hat  book 
(Iocs  not  purport  to  contain  a  statement  of  the  lower- 
in<i  days.  On  the  contrary.  Captain  McLean  directly 
testified  that  the  figures  in  this  book  were  compiled 
troiu  a  little  book  kept  on  board  the  vessel,  and 
w  liiidi  contained  an  account  witli  «ach  Indian  hunter,  r.^  1332,  line 
Tlijit  book  was  left  on  board  the  Favourite  in  the  fall 
of  1 886,  and  he  had  not  seen  it  since.  He  testified 
a;riiin  that  there  was  one  day's  catch  left  out  in  the 
statement  compiled  on  this  page,  marked  Exhibit  9, 
United  States  claim  No.  4,  upon  which  day  there  R.,_i330,  line 
were  some  110  skins  taken. 

li 


V 


55. 


to 


111  the  Argument  for  Great  Britain  a  ma})  is  referred  Argument  on 
which  was  prejiared  l)y  C.  H.  Townsend,  assistant,    Great  Brit- 
r.  S.  Fish  Commissioner  as  tending  to  show  the  loca-    ain,  page 
tion  of  the  "sealing  grounds."     The  original  of  this       ' 
chart  is  found  in  part  2  of  the  report  known  as  Senate 
Doc.  137  of  the  fir^t  session  of  the  Fifty -fourth  Coii- 
;i;r('ss,  and  upon  referring  to  page  53  of  the  book  in 
\vhi(di  the  map  appears,  it  will  be  found  that  Mr. 
Townsend  had  before  him  a  copy  of  the  log  of  the 
FdroKrite  for  this  voyage  of  18&6*     The  chart  itself 

In  the  document  referred  to  the  location  of  the  Favourite,  August  1, 
is  printed  under  date  July  31,  and  the  location  August  2,  um^er  date  of 
Au);ust  1,  and  this  mistake  is  made  with  reference  to  the  jation  for 
each  day. 


374 


THE   FAVOURITE. 


shows  where  the  F<ironrite,  between  the  2d  ami 
llltli  (hiys  of  Aii«>ii8t,  seaK'd.  If  the  inu])  nt ' 
Mr.  '^rowiisend,  based  uimhi  tlie  log"  of  the  Faroiiritr 
for  this  voya^i'e  of  IhSd,  is  to  be  used  as  aiitlioritv 
U])oii  tlu*  lo('ati<m  of  '*the  best  seaHii<>-  <»rouiuls,"  the 
chiini  that  the  Fiironritr  in  tlie  year  1H(S6  was  not  on 
tlie  seahnji'  <irounds  wonhl,  ap})arently,  not  be  sub- 
stantiated by  tlu'  (htcuments  used  on  belialf  of  (ircnt 
liritain  to  (U'luonstrate  tlie  location  of  "the  best  swil- 
in<>-  oTonnds." 

('a})tain  McLean  who,  it  will  be  reinendiered,  was 
half  owner  of  the  vessel  at  the  time  of  the  vovaw 
and  possesses  an  equal  interest  in  the  result  of  this 
claim  before  this  Ili<»h  ('Ommission  with  Cliarles 
Sprinji',  was  asked  on  cross-examination: 

R.,  1335,  line     Q-  1  >id  you  or  did  yoii  not  consider  that  you  had  a  claim 
52.  against  the  I'nited    States  (Toveriiment   lor   havinsr  been 


agai 

warncil  out  of  Ueriuf;'  Sea  ? 
A.  1  can  not  sav  that  1  did. 


45. 


i}.  I  ask  '.vhether  you  consider  you  had  a  claim? 

A.  1  considered  that  I  had  for  the  Onirartl.    The  Omcariit 
claim  was  jjood,  but  the  Farotirite'a  I  was  always  in  doubtof. 

().  And  you  attached  no  importance  to  the  matter  at  all? 

A.  No,  sir;  I  never  made  any  claim. 
R,,  1336,  line     Q.  You  are  sure  you  did  not  furnish  Mr.  Spring  the  par- 
ticulars for  the  lU'Cscntation  of  the  claim? 

A.  Not  to  my  knowledge.    I  never  was  consulted  in  the 
matter  when  he  nuide  the  claim. 

The  (lovcn'mnent  i/f  the  Tnited  States  claims  tliat 
the  Faroiiriff  continued  her  hunting*  vovajjie  to  the 
time  that  the  captain  considered  the  termination  of 
the  sealin<>'  season,  yivino-  no  heed  to  the  warniiw 
of  the  United  States  revenue  cutter,  and  that  tlic 
testimony  of  the  claimants  establish  the  fad  that  no 
dama<i'e  was  sutlered  by  reason  of  the  act  of  tluj  oilioer 
of  the  cutter. 


1    the   2d   and 

the    luaj)    (if 

the  Faroiirilr 

I  as  authoritv 

•iTouiuls,"  the 

SG  was  not  on 

r,  not  1)0  sub- 

)ehalf'  of  (ircat 

the  best  seal- 


ieni])ere(l,  was 

of  tlie  voA'aw 

'  resuh  of  tin's 

with  Charles 

ii: 

S^ou  liad  a  claim 
jv   biiviiig  been 

claim? 

.  The  (hitvaris 
rays  in  doubt  of. 
le  matter  at  all? 

Spring  the  par- 

consulted  in  the 

es  claims  that 
<)ya<>X'  to  the 
eniiinatioii  of 
the  waniini; 
and  that  tlie 
e  faci  that  no 
t  of  tlujotlicer 


the  black  diamond. 
Claim  No.  5. 

This  claim  was  not  presented  to  the  Tribunal  of 
Arbitration  at  Paris,  and  is  not  included  in  the  Con- 
vention of  Feljruarv  S,  ISDO,  either  in  the  schedule 
Mttiiched  thereto  or  in  parao-raph  5  of  the  preamble 
as  ;in  additional  claim. 

A  motion  was  made  on  behalf  of  the  United  States  Pleadings, 
that  the    Hijrh   Commi.ssi(»ners    "dismiss   from    con-    <=i''i">No.5. 
si(l(  ration  the  demand  of  the  Govennnent  of  Great 
Britain  embraced  and  described  in  claim  No.  5." 

'Pile  gTOunds  of  the  motion  are  that  as  t(>  the  said 
claiin,  in  w'hole  or  in  jiart: 

1.  No  (piestion  of  fact  involved  therein  was  sub- 
mitted to  the  Tribunal  of  Arbitration  cimstituted 
under  the  treaty  conclude<l  at  Washinf>ton  on  the  2!(th 
(it  February,  18!)2,  between  the  United  States  and 
(jlrcat  Britain,  in  accordance  with  Article  YIII  of  the 
said  Treaty. 

2.  The  said  claim  No.  5  was  not  embracetl  in  the 
schcMlule  of  the  British  case,  })ao-es  1  to  fU),  inclusive, 
as  piesented  to  the  said  Tribunal  of  Arbitration, 

3.  It  was  not  included  or  referred  to  in  Article  IX 
i»t'  the  award  (►f  the  said  Tribunal  of  Arbitration. 

1.  It  was  not  embraced  in  the  C<tnvention  between 
tile  United  States  and  Great  liritain  for  the  settlement 
nt  claims  ])resented  by  Great  Britain  a;^ainst  the 
I'liited  States,  in  virtue  of  the  treaty  of  February  29, 
ll^!)2,  \Vhich  Convention  was  ratitied  bv  the  President 
«>t  the  United  States,  April  23,  189(),  and  by  Her 
Uiitannic  Majesty,  May  14,  1896,  and  under  which  the 
lii"ii  Commissioners  were  named. 

879 


I  Mil 


iHir 


i 


^& 


I 


'Ik  I 


#7    11 


376 


THE    BLACK   DIAMOND. 


5.  And  the  said  claim  N<>.  5,  in  lu'lialt"  «>f  (Ireat 
Britain,  ciaiminj^  compensation  from  the  United 
States,  (Ud  not  arise  by  virtue  of  tlie  treatv  aforesaid 
or  of  tlie  award  and  Hndinj^s  of  the  said  'rrihuuiil  nt 
Arbitration,  and  it  is  not  an  additional  <*laim  specified 
in  the  fifth  parajj^raph  of  the  preand)le  to  the  said  Con- 
vention, juid  is  not  in  the  list  of  claims  intended  to  be 
referred,  appended  tt>  said  Convention,  pointed  out  as 
the  claims  intended  to  be  referred  in  Arti<*le  I  of  said 
Convention. 

The  argument  and  consideration  of  this  motion  wne 
postj)oned  until  the  final  arj»ument  of  all  the  claims. 
The  testimony  was  taken  (h'  bene  r.s.sY'.  Counsel  rep- 
resentinj>-  the  Government  of  the  United  States  and 
Her  Uritannic  Majesty  before  this  Hij>h  Connnission 
connnunicated  each  with  their  own  Government  and 
received  instructions  resulting-  in  the  following  stipn- 
ation: 

It  is  stipulated  and  agreed  by  counsel  for  Her  Britaniiio 
Majesty  and  the  United  States,  subject  to  the  sanction  of  the 
Commissioners,  that  the  claim  numbered  5,  resting  on  the 
alleged  warning  of  the  schooner  Black  Diamond  in  188(i  and 
R.,  1808.  the  personal  claim  of  James  Gaudin,  included  in  claim  No. 
11,  may  be  proceeded  with  by  the  Commissioners  /or  the 2)urpose 
of  reportimj  facts  and  conclusions  to  our  respectire  gorernmenU, 
for  their  information  separately  from  other  claims;  provided, 
however,  that  the  question  of  jurisdiction  of  the  Commis- 
sioners under  the  convention  in  respect  of  said  claims  shall 
remain  undecided;  but  the  Commissioners,  in  their  discre- 
tion, may  report  their  opinion  on  that  question — counsel 
intending  to  prejudice  in  no  way  whatever  their  respective 
governments  in  above  matters. 

R«^1808,  line      The  High  Commissioners  sanctioned  the  stipula- 
tion and  ordered  it  filed. 

The  Government  of  the  United  States  asserts  that 
the  considerati(m  of  this  claim  is  not  within  the  juris- 
diction of  the  High  Commissioners.  An  inspection 
of  pages  1  to  fJO,  inclusive,  of  the  British  case,  as  pre- 
sented to  the  Tribunal  of  Arbitration  at  Paris,  dis- 
closes that  no  claim  for  damages  by  reason  of  any 


67. 


THE    BLACK    DIAMOND. 


877 


halt'  of  Choiit 

tlH'    United 

t'Jitv  aforesaid 

1  'rril)iinjil  of 
'laiiii  s)K'citie(l 

the  said  Coii- 
nti'iidod  to  l)f 
pointed  out  as 
tit'le  I  of  said 

s  motion  were 
dl  the  daiius. 
C'oiinsel  rej)- 
d  States  and 
1 1  Coinniissioii 
vernineiit  and 
llowiiifT  stijm- 

r  Her  Britannic 
I  sanction  of  the 
resting  on  the 
911(1  in  188«»  and 
ed  in  claim  Xo. 
s  for  thepurpoit 
ire  (jovernmenU^ 
lims;  provided, 
jf  tbe  Coniinis 
lid  claims  shall 
in  their  discre- 
estion — counsel 
;heir  respective 

i  the  stipula- 

's  asserts  that 
hill  the  jiiris- 
^n  inspection 
case,  as  pre- 
at  Paris,  dis- 
3ason  of  any 


\v;iiiiinf;'  j^iven  to  the  M^farl:  DUtinotul  in  1H8(!  was  pre- 
sciifcd  to  that  '^I'nhmial.  No  reference  is  made  to  any 
siicli  chum  in  the  appendix  of  chiims  to  the  Conven- 
tion hy  wliicli  tliis  IIi<»li  Connnission  was  create<l; 
;iiid  tliis  chum  is  not  referred  to  in  parapapli  5  of  tlie 
])r(i;iul)le  of  the  Convention  of  Februarv  8,  1H9(!,  as 
;iu  additional  claim  to  be  submitted  to  the  considera- 
tinii  of  the  Hijjfh  Commissioners. 

The  Black  Diumond  referred  to  in  Annex  C, 
apjiended  to  the  award  of  the  Tribunal  oi  Arbitra- 
tion at  ]*aris,  as  liavinji'  been  seized  on  the  11th  of 
July,  1S8S),  35  miles  from  the  nearest  land,  by  the 
I'nited  States  revenue  cutter  Hush,  was  presented  to 
tliis  Ilifrh  Commission  as  Claim  No.  la,  and  the  tes- 
timony taken  in  connecti<m  with  that  claim  establishes 
that  the  Black  Diamond  was  seized  the  11th  dat/  ofJidtf, 
iss!)^  by  the  revenue  cutter  liichard  Bush. 

The  claim  of  the  Black  Diamond  for  the  year  1886 
is  of  a  different  nature  from  the  claims  submitted  by 
tlic  Convention  to  this  High  Commission. 

The  testimony  clearly  establishes  that  no  warning 
of  the  nature  found  by  the  Tribunal  of  Arbitrati«)n 
convened  at  Paris,  to  have  been  given  the  vessels 
named  in  the  schedule  appended  to  the  award,  was 
^iiven  to  the  Black  Diamond  in  the  year  188G,  and  the 
United  States  contend  that  no  warning  of  any  nature, 
as  conclusively  aj)i)ears  by  the  evidence,  was  given 
by  anyone  clothed  with  the  authority  of  the  Gov- 
frmnent  of  the  United  States. 

The  letter  set  out  in  that  ])ortion  of  the  Argument  ^'jfaif* of  g! 
tiled  on  behalf  of  Great  Britain,  wherein  this  claim    ,%  p,,!''^' 
i«  specifically  treated,  is  not  found  in  the  Record,  and 
the  conclusion  drawn  that  "similar  letters  were  writ- 
ten to  other  collectors  of  customs"  is  not  based  upon 
any  testimony  or  fact  found  in  the  Record. 

An  examination,  however,  of  this  connnunication 
tVoni  the  Treasury  Department  of  the  United  States 
to  the  collector  of  customs  at  San  Francisco  discloses 


line  13. 


1 

1 

mI 

i9; 

W 

f 

i 

k 

1 

:J!'' 

l.^ 

% 

1 

% 

f 

378 


THE    MLACK    DIAMOND. 


R.,  TYr.fi, 

ri. 


R.  1757, 
18. 


K.,  1757, 
68. 


K.,  1774, 
57. 

R.,  1757, 
54. 


tliiit  the  iiistriH'tioiis  tliciv  j»'ivfn  ivlated  cntiroly  U\ 
V('ss«'ls  i'ontcinphitiiiu'  ii  voy}i;>'c  tVoiii  tlic  jM»rt  «»t'  Sjiii 
Fniiicisfo,  snid  iiukK'  no  iH'trrnirc  wlisilcNtT  to  wiini- 
in^i'.s  Immu;^'  }ri\('ii  l»y  the  rolh'ctor  iiddn'sscd  in  tliat 
t'oMiiuunirJitioii  to  llu*  s]i'\ys  of  iiiiy  otlicr  iisitioii. 

Tlic  /l/dr/,-  hUntinuil  ciitnvd   licrin;^'  Sea  {d>oiit  tlic 
1st  of  .Iidy,  l.S.SO.  and  |»ioc«M*dod  to  the  port  of  I'n- 

liiu-iilaska,  wlicr*'  tlic  i-aplain  says  ccrtaiii  papers  '  ere 
served  upon  him  l»y  the  rolleetor  of  customs,  and  he 
was  advised  to  h'ave  Herinji'  Sea  rijiht       aN'. 

He  <dainied  to  liave  h»st  tlie  pajiers,  hut  states:  "Tlio 

lino])a])ers  represented  that  if  the  vesstd  was  caufiht  in 
Bering-  Sea  killin^i'  fui'  seals  she  woiiM  l>e  confiscated." 

Q.  Was  there  any  verbal  notice? 

A.  Yes;  I  was  Btroiififly  «f/r/«ef/ by  the  collector  of  customs 
at  I'nalaska  to  go  out  of  Hering  Sea,  or  J  would  be  sure  to 
be  seized. 

Q.  What  (lid  you  do  then  f 

A.  /  ireiit  out  Into  ^Jiv  sen  and  hcfiau  xvtilinff.  * 

(^.  How  long  did  you  remain  in  the  sea?  < 

A.  I  remained  until  the  beginning  of  August. 

ii.  What  day? 

A.  I  do  not  remember  what  day.  It  was  somewhere 
between  the  1st  and  the  .'M  and  4th. 

ii"e  The  ca))tain  then  states  that  ujxni  the  4th  day  of 
Auyust  he  started  on  his  return  \-o\a<«v  to  Victoria, 
ahandonin;^'  the  further  j)rosecuti<»n  of  his  hunting 
trijt. 

(}.  Why  did  you  start  for  home? 
A.  1  was  afraid  of  seizure. 

if.  Had  you  no  other  reason  to  leave  the  Bering  Sea  ex- 
cept that  of  being  afraid  of  being  .seized  ? 
A.  No,  sir;  J  had  no  other  reason. 

I'ue      The  Jihirl,-  Diffiiiond  h'ft  the  JJerin<j;'  Sea  about  the 

12th  or  14th  of  August. 
''°®      Captain    Paxton    was   (piestioned    relative   to   the 

])roj)osed  length  of  his  voyaji'e  and  sfdd: 

Q.  For  what  length  of  time  did  you  outfit? 
A.  Well,  I  expected   to  get    back  in  the  beginning  of 
September. 


i;hi< 


ed  cntiivly  to 
K'  port  ofSfiii 
cNcr  to  wjirii- 
ivsscd  ill  tlijit 
r  iiiition. 
v'}i  jilxtiit  tlic 
'  |)«>rt  of  I'll- 

|»JI|M'rs    '    ('!•(. 

stoms,  uiai  he 
t  states:  "'I'lie 

VJIS    CJIllnllt    ill 

'  confiscated." 

ctor  of  customs 
mkl  be  sure  to 


ist. 

^as  .somewliere 

c  4tli  duv  of 

c  to  \'ictoi-iji, 

his  liiiiitiiiff 


tiering  Sea  ex- 

ya  about  tiie 
iitivo  to   the 

beginning  of 


THE    BLACK    DIAMOND. 

(,>.  Yon  expected  to  leave  the  Bering  Sea  about  the  end  of 

All-list! 
A,  Ves,  sir. 

Tlic  mate,  ()\v(Mi  Tliomas,  v  s  called  as  a  witness 
(III  Ix'lialf  of  the  idainiants,  j^ivii);;  no  evidence  of  iin- 
|iiirtaiic(f  relating-  \o  thtj  occiu'iences  at  I'nalaska,  and 
!itiilin<i',  on  cro.ss-exaniinat'(  u,  th;tt  the  t';>j»taiii  would 
he  ln'tter  informed  as  to  what  oi'cuned  at  Tnalaska 
fliaii  he. 

'Pliis  witness  testihe<l  relative  to  the  time  that  the 
llliiil:  J)i((iiioH(l  left  the  sen: 

(}.  Are  you  positive  you  went  out  on  one  of  those  days,  or 
near  those  days? 

A.  Somewhere  near  the  12th  of  AuRUst  or  the  14th  of 
Aiijiiist. 

(}.  Von  could  not  be  niistaken  about  that? 

A.  Mo,  sir;  it  must  be  somewhere  between  the  lOth  and 
Mtli,  anyway. 

<i».  And  no  matter  what  the  captain  says  about  that,  you 
are  positive  that  that  is  the  time  you  left? 

A.  Yes,  sir. 

Pile  testimony  shows  that  altliou<ih  this  so-called 
wiiniin^'  was  <>iven  the  captain  on  the  1st  day  of  .hdy, 
the  Hide/,-  DUthKind  «'ontinue<l  on  her  voyaj^-e  until  the 
4tli  of  Auo-ust,  when  she  comnuMU-ed  to  work  toward 
line  (»f  the  jiasses,  and  finalh'  left  the  sea  between  the 
intli  and  Inth  of  that  montli,  takino-  in  the  meantime 
lictween  TOO  and  800  seal  skins. 

riie  .statement  is  made  in  the  Ih'itish  Ar<iument: 

111  the  case  of  the  lihivk  Diamoud,  No.  o,  and  tiie  Alfred 
.l'/((//(.v,the  title  wvs  in  a  British  subject,  but  the  ves.sels  were 
operated  for  the  benefit  of  a  trading  firm  at  Victoria,  com- 
jiDsi'd  of  the  owner  and  one  Alexander  Frank,  who  was  a 
iiiitiveborii  citizen  of  tlie  Uni!;?d  States. 

Tiie  l\ecord  discloses  that  Alexander  Frank  and 
,l;itol)  Gutniau,  deceased,  were  e(jual  jiartners,  which, 
t;iken  with  the  admission  made  on  behalf  of  (ireat 
P>ritain,  conclusively  proves  that  Alexan«U^r  Frank  is 
a  half  owner  of  this  claim. 

The  stipulation  recited  agrees  that  the  facts  and 


379 


K.,  Vim,  line 


K..  1774,  line 
51. 


K.,  1774,  line 

(50. 


U.,  1757,  line 
61. 


Argument  on 
liubalf     of 
(i.  I!.,l..  17,. 
line  23. 


Exh.  No.  10, 
U.  8., claim 
No.S.Exha. 
p.  207. 


380 


THE    BLACK    DIAMOND. 


conclusions  of  the  Comraissionerfs  shall  be  comnmni- 
catecl  to  their  respective  Governments.  The  United 
States  contend  that  the  testimony  conclusively  estal) 
lishes  that  the  grounds  of  the  motion  filed  before  this 
High  Commission  are  sufficient  to  exclude  the  claim 
from  the  consideration  of  the  Conmaissioners,  and 
that  the  facts  as  found  from  the  testimony  are  as 
follows: 

That  the  Black  Diamond  was  not  "seized  or  warned 
in  1886  by  a  United  States  revenue  cutter,"  as  found 
with  reference  to  the  vessels  named  in  Annex  C, 
a])pended  to  the  award  of  the  Tribunal  of  Arbitra- 
tion convened  at  Paris; 

That  no  warning  was  given  this  vessel  by  any  ])er- 
son  acting  with  authority  on  behalf  of  the  United 
States; 

That  the  vessel  remained  in  Bering  Sea  until  tlie 
10th  or  ir)th  of  August,  when  she  sailed  with  her 
cargo  of  seal  skins  for  Victoria; 

That  had  the  vessel  not  left  Bering  Sea  she  would 
have  terminated  her  voyage  between  the  20th  and 
25th  of  August; 

That  Alexander  Frank,  an  American  citizen  resid- 
ing in  the  city  of  San  Francisco,  in  the  United  States 
of  America,  was  a  lialf-owner  of  the  venture  of  tlie 
Black  Diamond  in  the  year  1886,  and  is  a  half  owner 
of  the  alleged  claim; 

That  no  instruction  or  comnmnication  was  evor 
sent  by  the  Government  of  the  United  States,  or  any 
person  representing  its  authority,  to  the  deputy  co'- 
lector  of  customs  at  the  port  of  Unalaska,  directing 
him  to  warn  or  seize  any  vessel  hunting  seals  in  tli« 
waters  of  the  Bering  Sea; 

That  the  instructions  issued  by  the  Un'ted  States 
Treasury  Department  to  the  conunanders  of  revenue 
cutters  of  the  United  States,  in  1886,  were  never  com- 


be  comnnini- 
The  United 
lusively  estab- 
led  before  this 
ude  the  claim 
issioiiers,  and 
;iiiiony  are  as 

zed  or  warned 

tter,"  as  found 

in  Annex  C, 

il  of  Arbitra- 

3I  by  any  ])er- 
)f  the  United 

Sea  until  the 
iled  with  her 

lea  she  would 
the  20th  and 

citizen  resid- 
United  States 
enture  of  tlse 

a  half  owner 

ion  was  ev(U' 
States,  or  any 
B  deputy  co'- 
ika,  directing 
»■  seals  in  tho 

In?  fed  States 
I's  of  revenue 
e  never  com- 


THE    BLACK   DIAMOND. 

iiiunicated  to  the  captain  or  any  officer  of  the  Black 
Uiamond  in  the  year  1886; 

That  there  is  no  testimony  in  the  Record  upon 
which  to  base  the  claim  "Legal  and  other  expenses, 
S250." 

That  no  amount  should  be  awarded  the  owners 
of  the  Black  Diamond  for  damages  suffered  in  the 
year  1886. 


381 


the  w.  p.  sayward. 
Claim  No.  6. 


Claims  iu 
British 
case,  Aiu. 
Rep.,'  vol. 
4,  p.  153. 


R.,  109."),  lino 
17. 


K.,  1095,  Hue 

58. 

R.,  1097,  lino 

3. 
App.  1$,   121, 

line  10. 


App.  B,  130. 
line  20. 


App.  B,  139, 
line  10. 


R.,  1147,  lines 
.36  and  Tu. 


Br.   Arg.,   p. 
Ill,  line  25. 

382 


l^he  \V.  P.  Suffiviird  was  a  scliooner  of  59.79  tons 
register. 

The  vessel  being  owned  at  the  time  of  lier  seizure 
by  l^lionias  H.  Cooper,  a  civil  citizen  of  the  United 
States,  any  liability  on  the  part  of  the  United  States 
to  this  claimant  is  denied. 

In  18H7,  after  sealing-  along  the  coast,  the  vessel, 
with  eight  canoes,  entered  liering  Sea  about  the  1st 
of  Julv.  On  the  9tli,  about  noon,  she  was  seized  bv 
the  United  States  revenue  steamer  Hush  for  violatiii;>' 
the  municipal  statute--*  of  the  United  States.  Under 
the  direction  of  the  United  States  ofticer  making  tlio 
seizure,  the  schooiuM-  was  scmt  to  Sitka  tor  trial,  where 
she  arrived  21  st  July.  On  the  13tli  Se])tember,  1887, 
the  vessel,  her  tackle,  apparel,  boats,  cargo,  and  fur- 
niturt^  were  libcle<l,  and  on  the  19th  September  .i 
decree  of  condemnation,  forfeiture,  and  sale  was  en- 
tered against  lier.  Subsequently  the  schooner,  her 
outfit,  and  cargo  were  bonded  by  Thomas  H.  Coo))er, 
as  owner,  and  an  a[)})eal  was  taken  by  him  to  tlu;  Sii- 
])reme  (^)urt  of  the  United  States,  wiiich  appeal  was 
perfected,  and  the  order  granting  it  was  entered  April 
27,  1888.  At  the  time  of  tlie  granting  of  this  order 
the  vessel  was  in  Seattle,  Washington  Territory,  and 
in  May,  1888  was  <lelivered,  with  the  skins  seized  on 
board,  to  the  owner. 

In.  the  scliedule  of  this  claim,  included  in  the  Argu- 
ment on  behalf  of  Great  Britain,  a})pears  an  item  'u' 


of  59.79  tons 

of  her  seizure 
of  tlie  United 
United  States 

st,  tlie  vessel, 
ubout  the  1st 
wMs  seized  by 
//  for  violatiiij)' 
tutes.  Under 
er  niakinfj;-  the 
or  trial,  where 
)teinl)er,  1887, 
ar<>-o,  and  fur- 
Septenibei'  ii 
I  sale  was  en- 
schooner,  her 
as  PI.  Cooper, 
lini  to  the  Su- 
'h  a[)})eal  wiis 
entered  Aj)ril 
of  this  onk'r 
Perritor}',  and 
vins  seized  on 


1  in  the  Arji'U- 
'8  an  item  ''»r 


THE   W.    P.    SAYWARD. 


383 


"4sr)  skins  on  board  at  time  of  seiznre,  at  8<>.5(>;  total, 
>i3,ir)2.50."  These  skins  referred  to  are  the  same  as 
tlii»se  recovered  bv  the  owner  under  the  bond  jiiven. 
Ciijitain  Warren,  who  had  the  manaoement  of  these 
vessels  for  Cooper,  was  asked: 

i).  Were  the  seal  skins  included  in  the  bond  you  gave  for  r.,  1147,  line 
[ha  Sat/ ward.*  57. 

A.  Yes. 

il.  How  many? 
A.  About  440. 

(}.  The  bond  was  given  for  the  vessel  and  the  skins? 
A.  Yes. 

On  the  19th  April,  1S8.S,  the  followino-  order  dis- 
(•har<:;in<>' the  schooner,  \V.  I*.  SaijK(trd,ihnu  custody 
was  made,  directed  to  the  marshal  of  the  District  of  App.  b.,146. 
Ahiska: 

Sir:  The  above-named  vessel  and  all  her  tackle,  apparel, 
t'luniture,  arms  and  ammunition,  and  carjyo,  consisting  of 
r,'.)  fnr  .seal  skins  tliat  liave  been  received  by  you  in  this  port, 
having  been  bonded  and  ordered  released  by  the  judge  of 
tlic  above  court,  you  will  therefore  disciiarge  the  vessel,  her 
tackle,  apparel,  furniture,  arms,  ammunition,  and  cargo,  con- 
sisting of  479  fur  seal  skins,  so  received  by  you,  and  deliver 
tiic  same  to  .1.  D.  Warren. 

I  hereby  certify  that  the  foregoing  is  a  true  and  correct 
t'()i»y  of  the  order  of  the  court  in  the  case  of  the  United 
Slates  r.  Schooner  \V.  P.  Sai/iraril,  entered  in  the  above 
entitled  cause. 

Attest  my  hand  and  seal  of  said  district  court  this  15)th 
(lay  of  April,  A.  D.  1888. 

H.   E.    IlAVDON, 

I Hsf riot  of  Alaska. 

I  iiereby  certify  and  return  that  tlie  schooner  W.  /'.  Say- 
irard  was  delivered  to  J.  D.  Warren  in  accordance  with  this 
order  of  the  conrt. 

Barton  Atkins, 

United  States  Marshal. 

In  view  of  the  fact  that  these  skins  were  returned 
to  the  owner,  the  United  States  consider  the  claim 
tor  tlieir  value  to  have  been  erroneously  included  in 
the  Arjrument  on  behalf  of  Great  Jiritain,  the  evidence 


r" 


Si 


884 


THE    W.    P.    SAYWAKD. 


beiiiji'  coiicliisive,  tor  in  no  other  li^lit  are  the  United 
States  \villin«>"  to  view  the  chum  made.  It  is  needlesji 
to  add  that  it  couhl  not  be  allowed  in  any  event. 

The  item  termed  in  the  schedule,  ''  Insurance 
App.  B,  119,^480.1)6,"  is  l)}ised  upon  a  stntement  of  "premiums 
paid  })er  Sai/ivard,  Anna  Beck,  Dolphin,  and  Grace" 
appearing-  as  Exhibit  No.  <)4  (G.  B.),  claims  No.  (5,  7, 
J),  and  10.  This  statement  shows  that  in  the  case  of 
the  \V.  P.  Sai/tranI,  the  owner  paid  for  insurance  from 
about  January  1,  1887,  up  to  August  If),  1887,  €!IS, 
16s.  7d.  The  vessel  was  seized  on  the  5)tli  day  of 
July,  and  had  received  the  benefit  of  over  four-fifths  of 
the  premiums  paid,  leavin<»-  a  balance  of  loss  of  insur- 
ance after  seizure  until  the  cancellation  of  the  policies 
of  !S91.50. 

The  United  States  claim  that  he  item  should  be 
reduced  to  this  sum. 

An  item  is  included  in  the  schedule  for  "mate's 
trip  to  Victoria,  SI  00."  In  the  Argument  on  behalf 
of  Great  Britain  the  following  statement  appears  in 
reference  to  this  claim: 

Br.  Arg.,  Ill,     While  waiting  for  trial  the  mate  got  leave  from  the  court 
line  1.        ^Q  gQ  ^Q  Victoria  on  his  parole  to  return  for  trial.    This  trip 
cost  the  mate  $100. 

The  marginal  reference  given  for  tliis  statement 
discloses  the  following  in  the  examination  of  A.  D. 
Laing,  the  mate  referred  to: 

R.,  1098.  line  Q.  You  say  that  you  came  away  for  good  in  October.  Did 
•  you  go  away  before  that? 

A.  I  did ;  I  came  away  in  August. 

Q.  How  long  did  you  stay  away  then? 

A.  I  arrived  here  on  Saturday,  and  I  was  on  my  way  back 
on  Monday. 

Q.  Why  did  you  go  back  ? 

A.  To  stand  trial. 

Q.  Why  did  you  come  away? 

A.  I  went  to  Judge  Dawson  and  asked  him  for  permission 
to  go  home  and  see  my  people,  but  he  said  there  was  no  trouble 
as  long  as  I  gave  my  word  of  honor  to  go  back  and  stand 


ire  the  Uiiitod 
It  is  needless 
my  event. 

'*  Insurance 


)f 


prenuuius 


,  snul  Grace" 
aims  No.  6,  7, 

in  the  case  of 
nsiirance  from 
if),  1887,  €!)S, 
le  ;)th  day  of 
r  four-fifths  of 

loss  of  insiir- 
of  the  policies 

teni  should  be 

le  for  "mate's 
Lent  on  behalf 
mt  appears  in 

I  from  the  court 
trial.    This  trip 

tliis  statement 
ition  of  A.  D. 

n  October.    Did 


on  my  way  back 


m  for  permission 
B  was  no  trouble 
back  and  stand 


THE    W.    P.    8AYWARD.  385 

trial,  and  I  did,  jxnd  went  back  and  stood  trial  when  it 

c(»iiie  on. 

It  is  a})parent  from  the  testimony  that  neither  this 
iiiiiu  nor  the  owner  could  recover  for  the  expense  of 
a  \  isit  to  his  family  at  Victoria. 

The  item  iu  the  schedule  entitled  "Belyea's 
(■liar<>es"  is  unwarranted,  as  there  is  no  evidence 
l)('tore  the  Conunission  that  such  an  amount  has  ever 
been  })aid  bj^  the  owner  of  the  vessel  to  IJelyea,  or 
tliat  he  has  become  liable  for  such  an  amount,  or 
that  the  services  rendered  were  of  such  a  nature  as 
t(i  warrant  such  a  charge;  and,  furthermore,  whatever 
services  were  })erformed  were  in  connection  with  the 
jircparation  of  this  claim  for  presentation  to  the 
( Htawa  Government. 

The  item  for  "owner's  expenses,  8200,"  has  no  R->  1143,  line 
t'oiindation  in  law  or  in  fact  upon  which  an  award 
(•(•uld  be  made. 

All  item  a])pears  in  the  Arj^^'umerit  on  behalf  of  Great 
Ibitiiin  entitled,  "  Exj)enses  incurred  in  bonding- »S'o7/- 
irtnd,  etc.,  sai/,  81,000,"  and  an  examinatiim  of  the 
Ilccord,and  especially  of  the  pao-es  cited  in  the  British 
AiL'ument  in  connecticm  with  this  claim,  fails  to  dis- 
clnsc  any  evidence  whatever  as  to  the  expenses  which 
were  incurred  by  Thomas  J  I.  Cooper,  the  owner,  or 
of  his  attorney  or  agent  in  ])rocuring  bonds,  and 
uiHJcr  any  circumstances  the  owner  having  bimded 
the  vessel  for  the  ))urpose  of  taking  an  appeal  to  the 
Sui)reme  Court  of  the  United  States  there  is  no  rule 
of  law  or  ecpiity  which  entitles  him  to  recover  any 
expense  incu. led  in  connection  with  peifecthig  such 
appeal.  It  is  also  api)arent  that  this  ex])ense,  if  any, 
was  (lei)endent  chiefly  upon  the  financial  standing  of 
the  owner.  The  United  States  claim  that  this  item 
col  lid  not  be  allowed  in  any  event. 

The  sum  of  '^  sai/,  82,000,"  is  claimed  hi  the  oppos- 
ing Argument  for  damages  to  the  Say  ward.     \]\)o\\ 
B  s 25 


.'J86 


THE    W.    P.    SAY  WARD. 


K.,  1147,  line 
42. 


tliis  .subject  tlie  exaniiuatiou  of  Captain  Warren  dis- 
closes : 

Q.  What  condition  was  slie  [  IV.  P.  Sayivard]  in  ? 

A.  Well,  the  vessel  herself  was  not  in  bad  condition;  u 
lot  of  the  '^env  and  stuff  on  her  was  missing,  such  as  tliu 
kedge  anchor  and  some  small  sails.  1  suppose  they  bad 
been  stolen,  but  1  do  not  know. 

Q.  W  liat  was  the  ettect,  if  any,  upon  the  vessel  between 
the  time  she  was  seized,  and  the  time  you  got  her  back? 

A.  There  was  not  more  than  there  would  naturally  be  for 
that  time,  lying  without  any  care. 

Q.  Only  the  effect  of  the  lyingup  of  the  ship  and  the 
absence  of  care  ? 

A.  Yes. 

Q.  Were  repairs  i)ut  on  her  after  she  got  back? 

A.  I  do  notjiist  remember  whether  I  repaired  her  or  not.  I 
Inoir  that  I  boiuihi  some  gear  and  stuff  for  her. 

Ill  tlie  deposition  of  Andrew  D,  Lain"-,  mate  of  tlie 
vessel,  tlie  following*  testimony  was  given: 

R.,  1104,  line     Q.  When  did  you  get  the  vessel  back  from  Sitka? 
63.  A.  She  came  back  here,  I  think,  in  May,  1888.    I  was 

not  here  in  1888.     I  was  up  in  Bering  Sea  in  the  schooner 
Favourite. 

Q.  When  did  you  next  see  her? 

A.  In  the  fall  of  1888,  when  I  arrived  home. 

Q.  Had  anythinff  been  done  on  the  hull  after  she  arrired 
heref 

A.  Not  to  my  knotcledye;  they  might  have  caulked  her  dech 
and  given  her  a  coat  of  paint. 

No  other  evidence  is  })roduced  than  the  statements 
of  these  two  witnesses  to  establish  the  damages  which 
the  Sai/fvard  sustained  through  detention,  nor  is  there 
evidence  to  show  that  any  sum  was  expended  U})on 
the  vessel  over  and  above  the  amount  usually  paid  for 
wear  and  tear.  The  United  States  therefore  claim 
that  the  charg^e  of  S2,000  is  not  only  excessive,  but 
that  there  was  no  unusual  expenditure  and  no  sum 
could  be  allowed  under  this  item  in  anv  event. 

As  to  the  items  entitled,  respectively,  **flag-,  S12,'' 
''bedding,  $40,"  and  "articles  on  board  ship,  items 
impossible  to  enumerate  (not  returned),  8200,"  tliere 


II  Wanvii  (lis- 


rd]  in  ? 

ad  condition;  a 
ing,  such  as  tlie 
ppose  they  liad 

I  vessel  between 
ot  her  back? 
naturally  be  for 

le  ship  and  the 


back? 

ed  her  or  not.    I 

r. 

ijj;-,  mate  of  the 
en : 

n  Sitka? 

ly,  1888.    I  was 
in  the  schooner 


Lie. 

ifter  she  arrived 

^aullied  her  dech 


the  statements 
laniages  wliicli 
)n,  nor  is  there 
xpended  upon 
sually  paid  for 
lerefore  claim 
excessive,  but 
e  and  no  suin 
V  event. 

^',  "flag-  m: 

rd  ship,  items 
),  8200,"  there 


THE    W.    P.    SAYVVARD. 


387 


is  ii(»  ('vi(U'nc('  of  any  kind  Ix'lorc  the  ( 'oiuiiiission  upon 
which  an  award  conhl  he  nnuh'. 

riic  claim  made  for  !^1M)()  'Moss  to  owner  hy  reason 
ot'  (h'tention  in  1887  and  ISSS,  when,  if  in  the  owner's 
|i(i>s('ssion,  she  would  have  l>een  coasting-  Xovemher, 
jlcccmher,  and  .lanuary,"  is  unwarranted.  There  is 
11(1  evidence  before  the  Commission  that  this  vessel 
Imil  ever  been  engaoed  in  the  coasting-  trade  other 
thiiii  was  usual  in  connection  with  a  sealing  trip  on 
the  coast  in  the  sj»ring  months.  The  marginal  refer- 
ences which  a})pear  in  connection  with  this  (daim  do 
iKif  bear  out  the  statement  made  in  the  Argument  on  J*"".  Arg.,  in, 
ht'half  of  Great  Britain.  This  s(diooner  was  not  fitted 
with  steam,  and  of  the  so-called  "Cooi)er  vessels"  only 
tliose  which  had  steam  power  a[)pear  by  the  Recia-d 
to  have  been  used  for  coasting  ])ur])oses. 

The  claims  made  for  "  balance  of  cat(di  for  the  remain- 
(h'V  of  the  season"  and  "estimated  coast  catch  for  1888, 
less  exi)enses,"  si 8,98(5.50  and  $2,413,  respectively, 
l)eing  for  prospective  profits,  can  not  be  allow^ed,  and 
ha\e  received  a  full  discussion  at  another  i)lace  in  this -'^'^*®'  i^^- 
Argument. 

The  individual  claims  of  Captain  Ferey  and  A.  D.  ^"*®'  3^^- 
baing  are  considered  in  this  argument  under  the  title 
of  "l*ersonal  Claims  of  Captains  and  Mates." 

Pile  only  damage,  which  the  owner  of  the  W.  P. 
Sdi/irard  sustained,  by  reason  of  her  seizure,  was 
throuo-h  her  detention  from  the  date  of  such  seizure 
to  the  time  when  she  was  surrendered  to  the  agent 
of  her  owner;  the  measure  of  damages  being  the 
ihiiuurrage  or  charter  value  of  the  vessel  at  the  port 
of  Victoria  for  that  period. 


i 


App.     13,     p. 

112. 
Claims    i  u 

B  r  i  t  i  8  li 

Case,   Am. 

Rep.,    vol. 

4,  p.  163. 

R.,  1040,  line 
HO  ;R.,  1040, 
line (50;  H., 
1041,  line 
31  ;R.,  1040, 
lined. 


R.,1041,  line 
44  ;R., 1041, 
lino  ()  1  ; 
App.  U,  p. 
151,  line  51). 


App.  13.  p. 
153,  lines 
12,  20. 


Br.  Arg.,  p. 
114,  line  33. 


the  anna  beck. 

Claim  No.  7. 

The  Ainia  lirrJ,  was  n  scliooiier  (►f  30.85  re<>'istore(l 
tons.  The  vessel  beinjji'  owned,  at  the  time  of  lier 
seizure,  by  "^I'honias  IT.  (N)oj)er,  a  civil  citizen  of  the 
United  States,  any  liability  on  the  part  of  the  lliiitcil 
States  to  this  claimant  is  denied. 

In  18S7,  after  a  sealing-  voya<«'e  in  the  s])rinj)-,  she 
transshipped  her  skins  on  the  west  coast  of  Vancou- 
ver Island,  and  sailed  for  lierinjj;'  Sea,  carryin<>'  ten 
canoes  and  one  hnntinf>'  boat,  with  twenty  Indians 
and  six  Avhite  men.  She  entered  the  sea  June  "iS. 
and  on  the  3(Hli  lost  a  canoe.  On  July  2  the  vessel, 
havinji'  on  board  336  seal  skins,  was  seized  by  the 
United  States  revenue  steamer  Hush,  for  violation  of 
the  nuinici])al  statutes  of  the  United  States.  She  was 
taken  to  Sitka,  a^id,  with  her  outfit  and  caro-o,  Avas 
libeled  by  the  United  States  attorney  for  the  Distriet 
of  Alaska,  an  a]»])earance  beiiifi'  entered  for  the  vessel 
on  behalf  of  her  master  and  owner. 

On  October  11,  1887,  a  decree  of  condemnation, 
forfeiture,  and  sale  was  entered  ag'ainst  the  schooner, 
her  outfit  and  cargo.  Subse<iuently  the  vessel,  a  por- 
tion of  her  outfit,  and  the  seal  skins  seized  were  sold 
under  the  decree  by  the  United  States  marshal. 

By  reason  of  tiiis  seizure  the  Anna  Beck  became 
totally  lost  to  her  owner. 

The  schedule  attached  to  that  portion  of  the  Argu- 
ment on  behalf  of  Great  Britain  relative  to  the  claim 
of  this  vessel  contains  an  item  for  "list  of  stores  on 

388 


THE    ANNA    HECK. 


389 


lidiird  the  scluxmer  Ainia  lice/,'  when  sci/.cHl,  so  far  as 
the  captain  can  ivcolloct."  The  inarjiinal  reference 
to  tliis  item  is  "H.,  lOGl-d'i."  The  part  of  the  Ueeord 
(•ircfl  contains  a  Hst  by  Olsen,  tlie  master,  of  stores  on 
1)1  mrd  of  tlie  sdiooner  at  the  time  of  seizure.  Tlie 
t(it;il  value  "'iven  by  tlie  witness  of  these  articles  is 
SS71.30.     The  itenrin  the  Ar<^-ument  is  S!)60..'K). 

An  examination  of  this  list  ji'iven  by  the  captain 
(liscloses  that  it  contains  a  boat,  a  stove,  and  water 
tanks,  which  a)nount,accordin<^  to  the  valuation  given, 
1o  81!)(),  leaving'  a  balance  of  8().S1.3().  Previous  to 
the  part  of  the  Record  cited,  the  following-  api)ears  in 
the  examination  of  Olsen  : 

(i>.  As  to  prices,  have  you  a  knowledge  personally  as  to  R.,  106I,  line 
the  value  of  such  articles  at  the  time?  ^^• 

A,  I  had  of  a  few  things,  but  not  of  the  whole  list.  I  had 
a  knowledge  of  about  one-third  of  the  prices  before  1  received 
a  list  to  the  effect  that  that  should  be  the  prices. 

(}.  Name  the  articles  that  you  know  the  prices  of? 

A.  Boat,  boat  compasses,  tubular  lanterns  and  lantern 
ylohes,  fish  lines,  salt,  pilot  bread,  and  rice;  that  is  all. 

It  is  claimed,  therefore,  in  view  of  this  statement, 
tliiit  the  valuation  upon  any  of  the  articles  incduded 
in  tlie  list,  other  than  those  referred  to  by  the  witness 
ill  the  statement  given,  are  not  evidence  of  s.ich  valu- 1^-- ^I'^i?  ^^^^ 
ation,  and  that  in  so  far  as  James  D.  Warren,  the 
aiient    of    the   owner,   disagrees   with   Olsen    in    the  "     • 

amount  of  stores  and  tlieir  value,  of  which  Olsen  had 
licrsonal  knowledge,  the  statement  of  the  latter  nuist 
be  accej)ted  as  the  better  evidence. 

Tlie  item  entitled  "sh>p  chest,  89'),"  rests  on  the  Rm.ii41,  Hne 
statement   of    Captain   Warren,    whose    examination 
shows  that  lis  was  ignorant  of  the  amount  of  such 
inoperty  seized.     Warren  sttites  that  there  were  four'^^'^g^^'^'^' ^"^® 
water  tanks,  and  that  "some  of  them  were  worth  82")."  k.^  1062,  line 
<  >ls(Mi  gives  in  his  list  three  water  tanks.     A  claim  is    ^• 
made  in  the  Argument  for  "four  tanks,  8100." 

Claims  ap})ear  in  the  schedule  for  "four  shotguns, 
^1()0,"  and   "two  rifles,   845."      Captain   Olsen,  in 


390 


THE    ANNA    HECK. 


R.,  1043, 
34. 


App.  B, 
liue  20. 


App.  B. 

line  22, 
App.  B, 

lino  54 


R.  1061, 
47. 

App.  B, 
line  23 


ret'ereiice    to   tlu*    arms  on  IxKinl    tlu'    A  mm    Iltrk, 
testified  ns  follows: 

lini!  i),  VVhiit  was  done  with  tlie  aminntiition  and  arms  of  the 
Anna  Heck  after  the  seizure? 

A.  The  ammnnition  was  left  on  board  in  the  store  locker, 
and  the  guns  were  taken  by  the  Indians  and  white  hunters, 
When  our  Indians  left  the  Anna  Heck  in  Cnalaska  they  liitl 
the  guns  in  their  blankets  in  a  certain  way  that  nobody  saw 
them. 

Q.  These  were  the  eleven  shotguns  belonging  to  the  8liii){ 

A.  Yes ;  the  I  ndians  took  them  from  the  .1  nna  Heck  on  board 
the  (JhtUemje  at  the  time  we  left  llnalaska.    They  hid  theiu. 

Q.  Do  you  know  what  became  of  the  guns? 

A.  Well,  they  were  partly  lost,  I  think  there  may  be 
three  or  four  returned  to  the  station  of  Captain  Warren. 
They  went  to  Victoria  with  the  Indians,  but  they  arrived  in 
Sitka.  Some  were  lost  on  the  way  down,  because  the  In- 
dians went  home  in  three  canoes  from  Sitka. 

i«2,      On  xVpril  1!),  1888,  the  United  States  marshal  sold 
the  33G  seul  skins  seized,  and  subse(iuently,  the  Jixctl 
ammunUio}!  and  Jirc  comjmsscs,  which  sales  were  con- 
firmed bv  order  of  the  United  States  district  court. 
'In  the  cases  of  the  other  vessels  in  1887,  the  arms, 

178,  which  were  seized,  condemned,  and  sohl,  are  men- 
tioned in  the  order  confirmin<^  the  sales  l)y  the  marshal. 
It  is  therefore  claimed  that  there  is  no  evidence 
that  the  firearms  belonfring'  to  the  owner  or  hunters 
were  ever  actually  seized  by  the  United  States. 

^'°®  The  item  for  sealing*  boat,  cookin<»-  ranji'e,  and  flag 
are  included  in  the  list  oiveii  by  Captain  ( )Lsen. 

^^^'  The  item  for  "premium  of  insurance  paid,  8.572.28," 
refers  to  Exhil)it  No.  (54  (G.  H.),  claims  Nos.  (I,  7,  9, 
and  10,  from  which  it  ai)])ears  that  the  policy  was 
canceled  from  Julv  21,  1887.  The  owner  had  had 
the  benefit  of  his  insurance  up  to  July  2d,  the  date 
of  seizure,  and  theref(»re  this  item  should  be  reduced 
to  the  amount  of  premium  for  twenty  days. 

For  the  items  "  beddin<»-,"  "estimated  value  of  arti- 
cles which  were  doubtless  on  board  which  can  not  be 
specifically  inentioned,"  and  "expenses  at  Sitka,  SlOO," 
there  is  no  evidence  to  sup})ort  the  claim. 


Ah  lift    Ilt(l,\ 

nd  arms  of  the 

le  store  locker. 

white  hunters, 

ihiska  they  liid 

lat  uobody  saw 

ng  to  the  ship! 
a  lirrk  ou  board 
They  hid  theiu. 
f 

there  may  be 
ptiliu  Warren. 

ley  arrived  in 
ecause  the  In- 

marshal  sold 
itly,  the  Jixi'il 
les  were  con- 
listrlct  court. 
87,  the  arms, 
)1(1,  are  nieii- 
V  the  marshal. 

no  evidence 
er  or  hunters 
I  States, 
njife,  and  flag 
1  ( )l.sen. 
nid,  8572.28," 

Nos.  (;,  7,  9, 
e  policy  was 
'ner  had  had 

2d,  the  date 
d  be  reduced 
a}'s. 

value  ofarti- 
'h  can  not  ])e 

Sitka,  s  100," 

11. 


THE    ANNA    HECK. 


391 


The  item  fen*  "personal  expenses  in  connection  with 
such  seizure  and  claims,  S'2,'')0,"  is  ])resumal)ly  l)ased 
u|)itn  the  t'ollowin<r  tef'tiinony  of  Captain  Warren: 

(,».  And  personal  claims  hav6  been  made  of  AL'OO.    To  what  R.,  1143,  line 
do  tliey  relate?  W- 

A.  That  would  be  a  proportion  of  my  own  personal  expenses 
iiiiide  in  each  of  the  cusea. 

It  is  shown  that  these  personal  ex})enses  were 
iiicurred  in  the  ])re})aration  of  the  claim  for  presen- 
tation at  Ottawa. 

The  charge  of  $700  for  "counsel  and  other  legal 
(Xpc^nses  hi  and  about  the  (daiins  arising  out  of  the 
seizure"  is  based  upon  no  evidence  that  there  was 
any  agreement  of  any  kind  by  the  owner  or  his  agent 
to  pay  l^elyea  for  services,  or  that  the  owner  paid 
such  charges  or  became  liable  for  them. 

The  item  for  "sealing  boat  and  outfit,  8140,"  is 
uuuarranted,  as  it  ap])ears  by  the  evidence  that  the 
Indians  of  the  Amm  Beck  took  it  wlien  they  started  K.,i043.  iin» 
fdi'  \'ictoria,  the  presu})tion  being  that  it  was  returned 
to  the  owner. 

The  item  "337  skins  at  86.50  each,  82,190.50," 
being  for  a  larger  sum  than  would  have  been  real- 
ized by  their  sale  on  the  market  at  Victoria  when  the 
vessel  would  have  presumably  arrived  there  if  she 
had  not  been  seized  exceeds  the  damage  which  the 
owner  sustained  by  their  seizure  and  condenmation 
to  that  extent. 

A  claim  is  nuide  for  819,500  for  "balance  of  catch 
lor  the  remainder  of  the  season"  of  1887.  The  claim 
is  in  the  nature  of  future  ])rofits,  which  can  not  be 
recovered  in  any  event,  since  the  vessel  was  totally 
lost  to  her  owner.  The  law  which  governs  in  such 
cases  has  been  already  discussed. 

The   items   for   "value   of  vessel,    88,000,"    and ^°J«' p- ^jo- 
"expenses  and  hardships  of  crew,  813,000,"  and  the   °  ®'P" 
personal  claims  of  Olsen  and  Keefe  have  received  full 
consideration  at  another  place  in  this  argument. 


R.,  1360,  lino 
10. 


the  alfrcd  adams. 

Claim  No.  8. 

Tills  olaiin  Wi  Dresoiitcl  to  tliis  Hlii'li  Commission 
on  \\w  artidnvit  ot"  AViiliam  II.  Djer,  wlio  was  cap- 
tain of  tile  scliooner  on  her  vovaye  in  the  I  i-riiij''  Sea 
in  the  year  1SH7. 

The  schooner  entered  Berinj;-  Sea  Jnly  10,  1.S87; 
was  seized  on  the  (Ith  day  of  i^'x'ust  by  the  coiii- 
niander  of  the  United  States  revenue-cntter  Richard 
HksJi,  and  ordered  to  Sitka,  there  to  be  surrendered  to 
the  persons  representinji'  the  authority  of  the  United 

B,,  1363,  line  States  at  that  ])la('e.  "^I'lie  crew  consisted  of  captain, 
mate,  2  seamen,  cook,  and  21  Indians. 

The  connnandin<»-  otticer  of  the  United  States 
steamship  liichdrd  linsli  caused  \o  be  taken  from  the 
Alfrcil  Adams  the  follo\vin<>-  j)roj)erty :  One  thousand 
three  hundred  and  eighty-two  seal  skins,  7  double- 
barreled  sliot<iuns,  3  Winchester  rifles,  2  single- 
barreled  muskets,  and  a  small  amount  of  ammunition 
of  jiractically  no  value. 

There  is  no  evidence  in  the.  record  that  the  Alfrcil 
A(hi)n.s  continued  her  sealing-  voyajie  after  bein^i' 
seized,  but  her  captain  stated  in  the  aflhlavit,  read 
into  the   Record,  that  he  refused  to  obey  the  instruc- 

E.,  1360,  linotions  of  the  ])oardiu<>-  officer  of  the  linsli  to  iiroceed  to 
Sitka,  and  instead  started  for  \'ict(U'ia,  arrivin<>'at  that 
])ort  on  the  31st  of  Au<>ust. 

Britisii    ar-      Moiitz  Gutiiiaii   is   the  owner  of  one-half  of  this 
47,™ine'23!cl''i^'"i>  '^^^^  Alexander  Frank,  an  American  citizen,  is 
the  owner  of  half  thereof. 

392 


li  (Vtmmi.ssion 
wlio  was  ciip- 
li(^  I   ■nii«»-  Scii 

Illy  10,  1S87; 
t  by  the  ('(iiu- 
C'litter  Ukhard 
suiTcndercd  to 
of  th(3  United 
ed  of  captain, 

[Jiiited  States 
a  ken  from  tlie 
One  tliousand 
iins,  7  d(tul)le- 
le.s,  2  sin^-k'- 
)f  aninnniitioii 

liat  tlie  Alfred 
e  after  beiiiji' 
aflidavit,  read 
!y  the  instnic- 
'  to  proceed  to 
rrivin<>'}it  that 

le-half  of  this 
can  citizen,  is 


THE    AI-FRED   ADAMS. 


393 


Moiit/  (Jntnian,  as  the  adndnistrator  of  the  estate 
lit  daco))  (Jntinan,  deceased,  ina(h^  aflidavit  on  the 
Iitli  <hiy  of  Novend)er,  1SS8.  as  folhiws: 

Tliat  the  Hiiid  tlnii  oC  (iutiiiiiii  and  Knuik,  bavins'  a  claim 
;i;';iiiist  tlie  (lovenimtint  of  the  United  States  of  Aineiiea  tor 
tlu'  iiinouiit  of  twenty  thousand  four  liundred  and  thirty- 
tliice  doihu's,  such  claim  bein^'  for  the  seizure  of  a  saiiinj; 
scliuoner  known  by  the  name  of  Al/rrd  Adoms,  and  oirneil  bif 
titc  s<(i(l  firm  of  (intman  atid  Frank,  aiul  of  certain  seal  skins 
licliin}>;in^  to  itho  said  Hrm,  and  that  proceedings  have  been  Kxhibits,  p. 
(■(iiiiinenced  and  are  now  being  i)roBecuted  for  the  recovery  214, liuei9. 
nl'siicli  damages. 

ill  the  afH(hivit  of  Moritz  (Jntnian,  of  November 
|i,  1S8S,  he  asked  tlie  j)r«d)ate  conrt  for  anthorit',-  to 
sfll  the  assets  of  Jacob  (Jntnian,  "excejitino-  thereont 
the  said  claim  of  twent}'  thousand  fonr  Innidred  and 
rliirty-three  dollars  ajiainst  the  United  States  anthor- 
itics." 

Alexander  Frank  swore  in  his  aftidavit,  execnted  liueoo.  ' 
nil  the  vJOtli  day  of  April,  1«88,  that  the  firm  of  (Jnt- 
lUMii  &.  Frank  did  at  one  time  own  the  Alfred  Adams. 
ill  tills  affidavit,  dated  April  HOtli,  l.SSS,  he  made  oath 
tlint  he  was  a  half  owner  of  "one  other  schooner,  also 
iv^istered  at  the  port  of  \  ictoria  in  tlu^  name  of  .lacob 
•  iiitinan,  and  nnder  the  name  of  Lilij,  but  formerly 
.nllcd  the  Alfred  Adams:' 

It  is  admittecl,  on  behalf  of  (Jreat  Britain,  that 
Alexander  Frank  was  e(|ually  interested  in  theo|)er}i- 
rioiis  of  the  Alfred  Adams  for  the  year  1887.  lie  is, 
therefore,  e(pially  interested  in  the  claim  as  fiU'd  be- 
tere  this  Ilifih  Commission,  inasimudi  as  the  (daini  is 
niie  entirely  I'ehitini''  to  the  car<>'o  or  earnin<i's  of  the 
>liip,  and  not  for  the  value  of  the  hull. 

<  )j)posed  to  this,  the  Government  of  the  United 
States  claims  that  af  the  time  of  the  seizure  of  the 
Alfred  Adams,  Alexander  Frank  was  not  only  inter- 
t*>feil  in  the  venture  of  the  shin,  but  was  an  owner 
lit'  one-half 


394 


THE   ALFRED    ADAMS. 


Accordinjily,  the  Government  of  tlie  United  Stiites 
denies  any  liability  to  Alexander  Frank  or  his  jtart- 
ner  in  ])usiness,  lor  the  reason  that  he  was  an  Amer- 
ican citizen  at  the  time  of  the  seizure  and  can  iKtt 
receive  damages  for  his  act  connnitted  in  violation  of 
the  nmnici[)ai  laws  of  his  own  countrv. 
Exhibit    80,      ry^^^^^  j//).^.^  A(laiii,s  was  constructed  in  1851  and  had 

claim    No.  .    ''  .  ,.  __  .  , 

8;   Exhii)-a  carrymo-  capacity  oi  (jS.i.)  registered  tons. 

it8,i),  1J7.       r|i|jg  (jl.(i,,i  ij^  ill  the  nature  of  a  claim  for  partitil 

loss  and  the  measure  of  damages  is  the  charter  value, 
or  demurrage  of  the  Alfred  Adams  from  the  date  of 
the  seizure,  August  6,  to  the  termination  of  the  seal- 
ing season  in  Bering  Sea  in  the  year  1887,  that  is,  the 
20th  or  25th  of  August,  in  addition  to  the  value  of  the 
seal  skins  and  guns  seized  and  condemned. 

There  is  no  testimony  in  the  Record  upon  which  to 
base  the  claim  "legal  expenses,  $300,"  or  the  claim 
"personal  expenses,  8200,"  and  no  testimony  is  cited 
in  the  Argument  on  behalf  of  Great  Britain. 


e  United  Stiitos 
nk  or  his  jjart- 

was  an  AintT- 
re  and  can  not 

in  violation  of 
y. 

n  1851  and  had 
d  tons, 
aim  for  partial 

charter  value, 
oni  the  date  of 
on  of  the  scal- 
es 7,  that  is,  the 
he  value  of  the 
nied. 

upon  which  to 
',"  or  the  claim 
tiniony  is  cited 
Britain. 


THE  GRACE  AND  THE  DOLPHIN. 

ClATI'iS  Nos.  9  AND  10. 

Tlie  Grace  and  Dolphinwt^re  schooners  havinj^-  auxili- 
iu  y  steam  })o\ver  and  a  reg-istered  tonnag-e  of  7(5.87  and 
fliUO,  res})ectively. 

The  vessels  l)eino"  owned  at  the  time  of  their  seiz- 
ure l>y  Thomas  H.  Coo})er,  a  civil  citizen  of  the 
riiited  States,  any  liability  on  the  part  of  the  United 
Stiites  to  this  claimant  is  denied. 

In  1887  the  schooners,  after  sealing-  on  the  coast, 
entered  Bering  Sea  in  company,  Jul}'  6.  On  July 
12  tiie  Dolphin,  with  018  seal  skins  on  board,  was 
seized  by  the  United  States  revenue  steamer  Bear; 
1111(1  (tn  July  17  the  Grace,  with  709  seal  skins  on 
lioiird,  was  also  seized  by  the  same  revenue  cutter. 
The  two  vessels  Avere  towed  to  Unalaska  and  from 
there  sent  to  Sitka.  The  Dolphin  arrived  on  July  31 
iind  the  Grace  the  day  following.  On  Sej)teml)er  11 
tile  Grace,  her  outfit  and  cargo,  were  libeled  by  the 
i  iiited  States  attorne}'  for  the  District  of  Alaska  for 
viohition  of  the  statutes  of  the  United  States.  On 
September  13  the  DoJpliin,  her  outfit  and  cargo,  were 
also  libeled. 

Appearances  were  entered  for  each  vessel  on  behalf 
<if  her  owner.  On  October  11,  1887,  <lecrees  of  con- 
denmation,  forfeiture,  and  sale  were  entered  against 
the  schooners,  their  outfits,  an<l  cargo. 

Snbse(juentiy  the  vessels,  })ortions  of  their  outfits, 
iiiid  the  sealskins  seized  were  sold  under  the  decrees 
In   the  United  States  marshal.     By  reason  of  their 

3t)5 


App.B.p.iie, 

line  55;  p. 
11', line  55; 
Claims  in 
Hr.  Case, 
Am.  Rep., 
vol.  4.  pp. 
158, 168. 


R.,  18fiO,  line 
55. 


R.,1861,linfi8 
13, 2Z. 


R.,  1145,  line 

94;  R., 1127, 

line  37. 
App,     15.    p. 

172.     App. 

15,  p.  163. 


App.  B,   pp. 
106. 171. 


31)6 


Br.  Arg.,  pp. 
122, 123. 


Ante,  p.  314. 
Ante,  p.  319. 


Claims  in  Br. 
Case,  Am. 
Eep.,  vol. 
4,  p.  207. 


R.,  618,  line 
43;K.,1617. 


R.,  1143,  line 
49. 


THE  GRACE  AND  THE  DOLPHIN. 

soiyjure  the   Grdcc  and   Dolpli'ni  became  totally  lost 
to  their  owner. 

The  items  attached  to  the  schedule  of  the  daniows 
claimed"  in  the  case  of  each  vessel,  which  appj-a:-  in 
the  Arji'ument  on  behalf  of  the  claimant,  those  tor 
"value  of  vessel,"  "expenses  and  hardships  of  crew," 
and  those  for  the  ])ersonal  claims  of  the  captain  and 
mate  of  each  vessel  have  been  already  considered. 

The  attenti<m  of  the  IIi<j;h  Conunissioners  is  called 
to  the  fact  that  there  was  no  mate  of  the  schooner 
Grace,  and  no  (daim  on  behalf  of  one  was  made  in  the 
claims  sulimitted  at  Paris. 

The  witness  N«trman,  who  testified  to  having-  acted 
as  mate  of  the  vessel,  was  the  en<;ineer,  and  his  testi- 
mony shows  that  he  was  not  detained  or  imprisoned  at 
Sitka. 

The  item  in  each  schedule  for  "Le<i'al  expenses, 
8850,"  is  composed  of  charges  by  Belyea  and  by 
counsel  at  Sitka.  The  former,  so  far  as  the  Record 
discloses,  were  for  the  preparation  <tf  the  claims  for 
j)resentation  at  Ottawa,  and  there  is  no  evidence  that 
the  owner  is  even  contin<>'ently  liable  for  their  })Ry- 
meiit.  'I'he  legal  expenses,  which  it  is  claimed  were 
incurred  at  Sitka,  are  not  shown  to  have  been  ])aid 
by  tile  owner,  or  that  he  contracted  to  pay  them. 

The  items  included  in  the  schedules  for  "flag," 
"bedding-,"  "estimated  \alue  of  articles  which  were 
doubtless  on  board  tlie  v^ss('l,  and  wliicli  can  not  be 
sj)eciHcally  mentioned,"  "passag'e  of  master  and  crew. 
>*^200,"  ha\e  no  evi(h'nce  to  support  them. 

"Time  and  jx-rsoual  expenses,  N'JoO,"  ai'e  not  proj)- 
erly  included  in  tlie  s(diedules,  being-  incurred,  if  at 
ail,  in  the  ju-eparation  of  the  claim  for  presentation 
at  Ottawa,  and  being-  covered  by  the  item  charged  in 
the  ^J'hornton  claim. 

A  claim  is  made  in  the  case  of  the  (inter  for  "l)ai- 
ance  of  catch  for  the  remainder  of  the  season"  of 


no 


totally 


lost 


Ot"  tllU  (lillllMfi'CS 

liic'h  api);.;,:-  in 
iiant,  tlioso  tor 
Iships  of  crew," 
lie  captain  and 
'  considered, 
loners  is  called 
f  the  schooner 
'as  made  in  die 

<)  liavin^^  acted 
'v,  and  his  testi- 
er imprisoned  at 

^eji'al  ex})enses, 
ielyea  and  bv 
as  the  Record 
the  claims  tor 
o  evidence  tliiit 
!  for  their  pav- 
s  claimed  were 
!iave  been  paid 
»  jiay  them, 
les  'for  "fla^i," 
«'s  which  were 
licli  can  not  bo 
aster  and  crew, 
em. 

,"  arc  not  pidp- 

incurred,  if  jit 

)r  j)resentatioii 

teni 


THE    GRACE    AND   THE    DOLPHIN. 


307 


charjicd 


111 


ir(i(<'  for  "  hill- 
he  season"  of 


18S7,  -SliJjoOO,  and  a  similar  claim  is  made  in  the 
case  of  the  Ihlplt'nt  anumntinfj;'  to  S22,l()().  These 
claiins  are  tor  futnre  j)rotits  which  can  not  be  re- 
covered in  any  event  since  the  vessels  were  totally 
lost  to  their  owner.  The  law  which  ooverns  in  casesAnte, p. loi. 
(if  t(»tal  loss  has  been  alrea<ly  discussed. 

The  items  in  the  schedule  of  the  claim  made  for 
the  (irarc,  "three  iron  tanks,  twelve  water  casks, 
twelve  ji'uns,  three  rifles,  cannon,  <i'un  tools,  two 
boats,  cook  stove,"  are  based  upon  the  statements  of 
.fames  1).  Warren,  the  mana;iin<>'  ao-ent  <»f  tiie  owner  i^>  1139. 
The  testimony  of  this  witness  shows  that  his  evidence 
n  lutes  to  the  cost  of  these  articles,  and  not  to  their 
value  at  the  time  of  seizure.  In  connection  with  the 
ditlcrent  articles  in  re<i'ard  to  which  he  was  ([uestioned, 
he  stated  as  follows: 

Tliat  is  Just  what  they  would  cost. 

i).  How  much  shouhl  you  say  they  were  worth? 
A.  That  is  about  what  they  cost. 

#  #  •      '      •  #  *  # 

i}.  ITow  nuich  would  that  cost? 
A.  Fifty  dollars. 
().  That  is  the  cost  price? 
A.  Yes. 

There  is  nothinji'  in  the  IJecord  to  determine 
wlicther  or  not  the  articles  were  new  Avhen  seized, 
but  since  the  vessel  had  sealed  throu<iiioiit  the  season 
of  lS,S(i,  the  ])resum])tion  is  that  many,  if  not  all,  had 
iicni  used  for  over  a  year  and  were  not  worth  their 
fdst  j)rice  at  the  time  the  -vessel  was  sei'«'(l. 

The  item  for  "twelve  onus  and  thive  rifles"  appears k.,  1139,  line 
to  rest  upon  the  testimony  of  Warren.    The  return  of    ''^' 
a  part  of  them,  and  the  subse(pient  i)urcliase  of  the 
balance  by  Warren,  are  discussed  in  connecticj'i  with 
similar  Items  appearino-  in  the  schedule  of  the  Ih/jiliin. 

The  item  in  the  schedule  "insurance,  >5848.75"  is    ...  .... 


R.,  1139,  line 
43. 

R  ,  1139,  line 
56. 


R.,  1139,  line 
G6. 


31)8 


THE    GRACE    AND    THE    DOLPHIN. 


App.  H.  1(12,  1)},s(m1  ui)«>n  i\  statenuMit   in   Exhibit  No.  64  (0.  H.) 

line  Jo,  ^  \  r 

claiins  Nos.  (!,  7,  i),  and  1(1.  By  tliis  it  ai)j)ear.s  tliiit 
the  ])oli('y  was  cancc'led  on  Anj^nst  18tli,  and  tlii' 
only  (hiniajie  tliat  the  owner  could  have  sustained 
l)y  reason  of  the  seizure  was  the  amount  of  ])reiiiiuiii 
for  the  thirty-one  days  from  July  17th  to  Au<iiist 
18th,  having'  received  the  benefit  of  his  jjolicy  from 
January  o,  1887,  to  the  date  of  seizure. 

The 'item  "7(11)  skins,  at  >^6.5()  each,  s4/j<)8"  will 
be  discussed  in  connect'>n  with  a  similar  item  ap- 
])earing-  in  th«?  schedule  of  the  damages  claimed  in 
the  case  of  the  Dolphin. 
R.,  1165,  line  In  file  cross-examiiuition  of  Captain  Warren,  lie 
made  the  following  statement: 

I  chartered  lier  [the  Grace]  to  the  Uiiiteil  States  marsbal, 
and  tlie  Ignited  States  marshal  allowed  us  to  take  all  the 
provisions  that  was  left  on  the  (ivace  and  the  Dolphin  to  help 
fit  her  to  go  to  Uualaska  to  bring  the  skins. 

^50-Ti7r  ^'**^"  ^^'^'^  charter  Warren  received  82,500,  out  of 
iine2x.  '  whicli  the  Avages  of  the  captain,  mate,  and  crew  were 
])aid,  leaving-  a  balance  in  the  hands  of  Warren  nf 
^2,030.  No  reference  is  made  in  the  Hritish  Argu- 
ment to  this  charter,  and  no  deduction  is  made  for  the 
money  received  therefor.  It  is  claimed  that  from 
whatever  amount  of  damages  sustained  by  the  owner 
as  a  I'esult  of  the  seizure  there  must  be  deducted  the 
sum  thus  received  by  Ca])tain  Warren. 

In  the  case  of  the  Dolphin  the  items  for  **  slop 
cliest,"  -'iron  tanks,/'  "casks,"  "2(5  g-uns_  at  840  each," 
"10  muzzle-loading-  g^uiis  at  820  each,"  "4  rifles 
at  822.r)0  each,"  "bomb  guns,"  "  to(da,"  and  "cook- 
ing stove,"  are  based  upon  the  testimony  of  Ca])taiii 
Warren,  and  what  has  been  said  in  reference  to  his 
testimony  in  considering-  similar  items  in  the  schedule 
of  the  damages  claimed  for  the  Grace  equally  apply 
here. 

R.,  1171,  line     '^pjj^^  firearms  mentioned  in  this  schedule  are  derived 
from  a  list  contained  in  an  account  book,  from  which 


No.  64  (G.  H.), 
it  i)i)|H'ars  tliiit 

18tll,     Mild   tile 

lijive  sustiiiiu^ii 
imt  of  piviiiiniii 

7tll    to    iV delist 

liis  policy  tVoiii 

1,^^4,998"  will 
liiiiilar  item  a])- 
es  t'laiiued  in 

iiiu  WaiTcii,  lie 

1  States  luarslui], 
18  to  take  all  tbe 
le  Dolphin  to  ]if]\) 

a. 

82,500,  out  of 
,  and  crew  were 
8  of  Warren  (it 
B  British  Aryii- 
1  is  made  for  tiu' 
med  that  from 
d  by  tlie  owner 
>e  deducted  the 
I. 

ems  for  "sloii 
IS  at  840  each," 
ach,"  "4  riries 
8,"  and  "cook- 
ony  of  Ca])taiii 
reference  to  liis 
in  the  schedule 
'.  equally  a}»i)ly 

lule  are  derived 
ok,  from  which 


THK  GRACE  AND  THE  DOLPHIN. 

tlir  witness  Warren  testitied.  In  his  examination  in 
ivt(  reiice  to  this  account  hook,  and  ]»articularly  to  this 
list  on  which  the  item  for  firearms  in  the  opposing' 
Aiiiument  is  based,  Warren  testified: 

().  And  at  the  foot  is  this  statement,  "The  guns  returned." 
A.  Ves;  that  is,  the  Indian  gnns.     That  statement  is  that 

II  were  returned  and  that  one  of  my  own,  a  private  fowling 

pifce,  was  returned. 

*  *  *  *  * 

Tlie  Indians  on  the  Dolphin  got  their  guns  back;  I  do 
iKit  know,  but  1  suppose  that  the  Indians  on  the  Onice  got 
tlu'irs  back  also.  They  were  thereat  the  time  audi  know 
tliey  were  given  what  they  claimed. 

i}.  Do  you  mean  by  "  their  guns"  guns  furnished  them  by 

Vdll  .' 

A.  No;  their  owmi  guns.  There  were  quite  a  number  of 
them  seized. 

().  Were  there  any  guns  on  the  Dolphin  besides  those  you 
did  not  get  back? 

A.  Yes;  quite  a  lot. 

ii.  How  many? 

A.  There  was  about  '21  shotguns  and  about  4  ritles,  as  near 
;is  1  can  remember. 

(^  Do  you  mean  belonging  to  the  Dolphint 

A.  Ves,  sir. 

It  is  apiiarent,  therefore,  from  this  evidence  that 
the  "ten  muzzle-loading"  guns"  and  five  of  the  shot- 
jiiius  were  returned,  which  would  corrobcu'ate  the 
statement  of  the  witness  of  the  number  of  guns  taken 
as  "  about  21  shotguns  and  about  4  rifles." 

The  witness  Warren  states  that  he  Ijought  some  of 
these  guns  at  auction  when  they  were  sold  by  the 
I'liited  States  marshal  in  xVpril,  1888.  The  sale  to 
wliich  reference  is  made  occurred  on  April  19,  1888, 
at  Sitka,  at  which  time  the  sale  of  seal  skins  also  took 
place.  The  guns  of  the  Dolph'ni  were  purchased  by 
Warren  for  S2J)9.50,  and  those  of  the  Gmcc  for  S9I..5O. 

Subsequently  to  this  sale  the  marshal  sold  "  guns, 
aiiiniunition,"  etc.,  from  the  schooner  Boljjh'm,  for 
^62.41,  and  "guns,  ammunition,"  etc.,  from  the 
schooner  Grace  for  S135.27.      As  these  latter  sales 


3i)9 


]{.,  1162,  line 

27 


R.,  1159,  line 
37. 


R.,  1159,  line 

55. 
R.,  1170,  lino 

45. 

App.  B.,  171, 
lino  16. 

App.  B.,  171, 

line  23. 
App.  B.,  178, 

line  48. 


App.  B.,  171, 
line  25. 


ill 


App.  B.,  178, 
hue  54. 


400 


THE  GRACE  AND  THE  DOLPHIN. 


54. 


included  the  {uninuiiition  wliich  was  taken  from  tlic 
vessels,  it  is  apparent  that  the  majority  of  the  ••■uiis 
were  disposed  of  at  the  sale  which  took  })laco  on 
April  19,  at  which  Captain  Warren  was  the  i)urchaser 
in  both  instances.  There  is  no  evidence  before  tlie 
Commission  that  the  guns  were  not  in  as  good  order 
at  the  time  of  sale  as  when  they  were  seized,  or  tliat 
the}'  had  not  received  i)r()per  care.  On  his  redirect 
R.^  1170,  line  examination  the  witness  was  asked  whether  he  had  an 
opportunity  to  insjjcct  them,  or  if  he  know  what 
care  lad  been  taken  of  them  from  the  time  of  sei/Aiie 
until  the  auction  took  place;  lie  was  not  asked  in 
what  condition  the  g'uns  were,  or  how  many  he  pur- 
chased at  that  time.  It  is  therefore  claimed  by  the 
United  States  that  the  only  damage  which  the  owner 
sustained  by  reason  of  the  firearms  seized  was  the 
amount  which  Captain  Warren  ])aid  out  at  the  inar- 
shall's  sale,  namely,  ^299.00  and  ^91.50. 
P-  The  item  "insurance,  !S722.71,"  is  founded  upon 
the  statement  in  Exhibit  No.  64  (C.  H.),  Claims  Xos. 
(),  7,  9,  and  10.  It  ap])ears  tlierein  that  the  p<du'ies 
were  canceled  on  August  2,  1887;  the  only  dama;.fe 
in  this  }>articular,  therefore,  which  the  owner  sulfcreil 
was  the  amount  of  premium  from  July  12,  the  day  dl 
seizure,  up  to  Aug-ust  2,  when  the  p()lici(^s  were  can- 
celed, he  having-  had  the  benefit  of  the  insuraiue 
from  January  3,  1887,  when  the  policies  were  issued, 
u})  to  tlie  time  of  the  seizure. 

The  item  "ammunition  extra"  has  no  evidence  td 
sustain  it. 

In  reference  to  the  claim  for  "(J  18  skins,  at  ^G.')!! 
each,  iS4,017,"  and  the  claim  for  "7G9  skins,  at  s(i..")0 
each,  >^4,998,"  for  the  Grace,  the  Record  discloses 
that  they  were  pin'(d\ased  by  Warren  at  the  sales 
which  took  place  (m  August  19,  1888,  to  which  ref- 
erence has  been  made.     His  testimony  is: 

Rm^USI,  line  Q.  (Jan  you  make  a  statement  of  the  sesils  you  have  bouglit 
from  the  various  vessels;  You  told  us  that  you  thought  you 
could  do  so. 


App.     B, 
120. 


40. 


taken  from  tlif 
ity  of  the  <>-uii!s 

took  ])l{ice  oil 
.s  tlie  })ur('liasei' 
ence  before  the 
1  as  jji'ood  (trder 
!  seized,  or  that 
On  liis  redirect 
ether  lie  ha.d  an 
he   knew   what 

time  of  seizure 
s   not  asked  in 

V  many  lie  pui- 
laimed  bv  ihe 

hieli  the  owner 
seized  was  the 
out  at  tlie  luiir- 
50. 

founded  u])on 
i.),  Claims  Xos. 
hat  the  poheies 
le  only  daiiia;.i'e 

owner  suffered 
r  12,  the  day  of 
M('i(;s  were  caii- 

the  insurance 
ies  Avere  issueil, 

no  evidence  tn 

skins,  at  i^G.ilO 

skins,  at  rSO.'iO 

ecord  discloses 

sn  at  the  sales 

3,  to  which  ret- 

Y  is: 

you  have  bouglit 
you  thought  you 


THE    GRACE    AND   THE    DOLPHIN. 
A.  Yes  J  it  is  as  follows. 

Schooner. 


401 


Aliiiiii 

Lottio  Fairfield 

Dolphin 

(iraeo 

Allied  Adams .. 


Price 
eacli. 

$3.65 
3.70 
3.75 
3.30 
3.30 


That  is  the  lot  that  I  bought,  but  on  a  division  I  got  127 

more. 

The  retimis  of  the  United  States  marshal  for  these  -^pPj  •^^■^. 
sales  show  that  he  realized  from  the  sealskins  on  the  178,' line 45.' 
Ihlplt'm  82,235  and  from  those  owiXxaGyane  82,537.70. 

'riie  owner,  having  procured  the  skins  for  these 
amounts,  sustained  damages  by  reason  of  their  seiz- 
ure only  to  the  amount  which  was  actually  paid  for 
tlicm  to  the  United  States  marshal. 
-26 


R.,  1210,  line 
31. 


R.,  1212,  liue 

48. 
R.,  1213,  liue 

48. 
R.,  788,   line 

28;      1214, 

lino  21. 
R.,  1211,  line 

50. 


R.,  1210,  line 
20. 


K.,  1288,  line 

40. 
R..  1297,  line 

47. 

R.,  1298,  line 
42. 


R.,  1277,  lino 


R..  1217,  line 
50. 


R.,  1247,  line 
58. 


402 


THE  ADA. 

Claim  No.  11. 

The  Ada  was  a  scliooner  of  (>r),23  tons  rejjistcr, 
Her  owners  in  June,  18.S7,  were  J.  .1.  Gray  aiul  W.  E. 
Pine.  Slie  sailed  from  Vietoria  for  leering-  Sea  on 
June  17,  1887,  carrving-  seven  canoes,  one  liuntiii<i 
boat,  and  a  stern  boat.  Slie  entered  the  sea  July  16, 
and  eontinued  sealinj^'  intlio.se  waters  until  the  inoni- 
in<i'  of  August  2'),  at  whi<'h  time  she  was  seized  by 
the  United  States  revenue  steamer  Jicay,  having  on 
board  1,870  seal  skins;  She  was  towed  to  Unalaska, 
where  .she  remained  two  days,  her  seal  .skins  and  fire- 
arms Ijeing  removed.  From  that  ))ort  she  was  sailed 
by  her  crew  to  Sitka  under  orders  of  the  commandiiiji' 
orticer  who  made  the  .seizure,  where  she  arri\ed  Sep- 
tember ").  Se|)tember  13  the  vessel,  her  outfit  and 
cargo  were  libeled  by  the  United  States  attorney  for 
the  Distri'^  of  Alaska,  and  on  October  11a  decree  of 
condemnation,  forfeiture,  and  sale  was  entered.  On 
the  same  day  one  W.  Clark  filed  a  claim  of  owner, 
stating  therein  that  he  was  the  duly  authorized  attor- 
ney for  " Craig,  owner."  llie  vessel  was  subse- 
quently sold  under  the  (hn'ree.  By_  reason  of  tlio 
seizure  she  became  totally  lost  to  her  owners. 

The  Add  when  seized  had  in  fact  c.oiin»leted  her  seal 
hunting  in  IJering  Sea,  James  Gaudiii,  the  captiun, 
having  stated  that  the  length  of  his  voyage  would  he 
determined  absolutely  by  the  weather.  The  schooner 
AHie  I.  Ahjer  was  .seized  on  the  same  day,  a  short  time 
before  the  Ada.  Charles  E.  llaynor,  the  master  of  the 
Alger,  testified  that  lie  had  finished  sealing  for  the  sea- 


THE    ADA. 


4(^3 


tons  repfistcr. 
Ira y  and  W.  E. 
Hering-  Sea  t)ii 
s,  one  lunitiiio' 
le  sea  July  16, 
Luitil  tlie  inoni- 
was  sei/ced  by 
*ear,  havin"-  on 
d  to  Unalaskii, 

skins  and  tiro- 
she  was  sailed 
le  eonnnandinji' 
le  arrived  Sep- 
lier  outtit  and 
es  attorney  tor 
11a  decree  of 
i  entered.  On 
aim  of  owner, 
itliorized  attor- 
<sel  was  subse- 
reason  of  tlio 
)wners. 

i})leted  lier  seal 
II,  the  captain, 
yag^e  would  be 

The  schooner 
y,  a  short  time 
3  master  of  the 
ug  for  the  sea- 


son, and  that  lie  had  atteinj)ted  to  leave  the  sea  the 
niii'l it  before.  U])on  cross-examination  Captain  Kay- R.,  1250,  line 
nor  was  asked:  "What  pre[)aration  had  you  made  on  ^®* 
rlic  24th?"  To  which  he  answered:  "I  turned  my 
l)oats  all  bottom  up  <m  de(;k  and  lashed  them,  and 
stowed  everything;  away  and  made  fast."  The  evi- 
dence relating-  to  the  duration  of  the  season  in  the^jj^-g  ,,.228. 
\oMr  1SS7  has  been  collected  and  <liscussed  in  another 
part  of  this  argument,  entitled  "  Duration  of  the  sealing 
season,"  where  it  is  shown  that  the  hunting  })eriod  for 
that  year  ended  between  the  20th  and  25th  of  iVugust. 
h  is  therefore  claimed  by  the  United  States,  from  the 
rcstiinony  in  general,  and  from  that  (if  (.'aptain  Kaynor 
ill  particular,  that  the  weather  had  become  unfavor- 
iddc  for  sealing  purposes  by  the  2r)th  of  August,  1SS7, 
iiiiil  that,  as  the  weather  was  to  determine  the  extent 
lit'  her  cruise,  the  Aoyage  of  the  Ada  was  ended;  and, 
furthermore,  she  had  secured  a  catch,  which  denum- 
strates  that  her  season  was  over. 

The  item  for  ^120  in  the  claim  presented  in  the 
Argument  on  behalf  of  Great  Ih'itain  termed  "  Pre- 
inimu  of  insurance"  can  not  be  allowed,  as  the  voyage 
WHS  completed  and  she  had  received  the  benefit  of 
su(di  insurance.  "•'"  Aih 

it  a])})ears  from  the  evidence  of  James  iGlaudin,  the 

master,  that  the   canoes  which  were  carried  bv  the„    ,„,o  ,. 
,  ,  ,    1.  ,  .  1  .  (•     I       V     T       R.,  1218,  line 

.1(1(1  were  delivered  mto  the  ])ossession  ot  the  Indian    3. 

liimters.     This  fact  was  brought  out  upon  the  cross- 

ixamination,  and  the  witness  in  his  redirect  examina- 

tiiiii  modified  his  statement  only  in  the  particular  that 

111'  (lid  not  know  whether  they   were  giv  11    to    the 

biilians,  but  he  states  that  orders  had  hceii  given  hij  flic    42."   ' 

"////•/  fo  release  the  canoes.     It  is  therefore  claimed  by 

ilic  United  States  that  as  no  evidence  is  produced  to ii->  1218,  line 

show  that  the  order  was  not  obeyed,  and  that  the    .  '. 

liiilians  had,  j)reviou8  to  the  departure  of  Gaudiii,  v- 

ht'on  in  possession  of  their  canoes,  the  presumption  is 

that  the  canoes  were  retained  by  the  hunters;  and, 


404 


THE    ADA. 


furtliennore,  tlmt  tlie  canoes  IxMiig-  the  j)r(>|)erty  ot 
tlie  Indian  Inniters,  Great   Britain  is  not  entitled  to 
j)resent  a  claim  tor  tlieni  in  any  event. 
R.,  1213,  line      'l\\(iA(hi  carried  one  lnnitin<»-  boat  and  a  stern 

At  O 

boMt.  The  latter  belon<ied  to  the  vessel  and  lier 
outfit,  and  would  therefore  be  included  in  the  valua- 
tion of  the  schooner.  It  is  shown  by  the  accounts 
submitted  in  evidence  by  the  claimant,  J.  J.  (Irav, 

three  sealiim-  lioats,  which, 
delivered  at  Victoria,  cost  him  <'5420.r)7.  One-third 
of  the  sum  would  be  >S140.1I).  As  the  boat  seized 
had  been  used  at  the  time  of  seizure  for  one  season, 
it  would  have  depreciated  in  value  about  one-third. 

^42?55,5r"  ^-  ^^-  l^"ii'H>er<.-,  the  mate  of  the  Ada,  stated  in  his 
examination  that  the  shotj^un  which  he  used  wa.s 
retiu'iied  to  him,  and  that  he  saw  some  hunters  of 
the  A(Ja  j>ettin{>'  theirs  also.  He  further  stated  that 
anyone  who  claimed  his  oun  received  it.  It  is  there- 
fore contended  on  the  part  of  the  United  States  that 
the  guns  of  the  vessel  were  returned  to  the  hunters, 
and  that  u})<m  such  delivery  the  United  States 
became  no  longer  liable  for  their  seizure. 

R.,7'J0,iinei.  If  appears  from  the  evidence  of  the  mate  that  the 
voyage  from  Unalaska  to  Sitka  occu})ied  nine  da\s, 

E.,  792,  line  and  that  the  provisions  onboard  were  sufficient  to 
maintain  the  crew  and  hunters  for  only  ten  days  after 
their  arrival  at  Sitka;  that  besides  the  provisions  used 

E.,  792,  line  by  the  crew,  a  ])oliceman  took  from  the  schooner's 

*^-  su])plies  7r»  pounds  of  beef,  2  mattes  of  rice,  and  half  a 

bucketful  of  butter.     It  would,  theiu3fore,  seem  that 

at  the  time  of  her  seizure  the  Ada  had  onboard  scarcely, 

if  ail}',  more  })rovi8ions  than  were  necessary  for  her 

E.,  1945,  line  I'eturn  voyage  to  Victoria.  The  witness  Louis  Olsen 
^-  gave  the  cost  of  provisions  per  month  for  an  Indian 

R.,  1944,  line  as  between  83.10  and  S3. 25,  and  for  a  white  man 

E.,  1245,  line  ft'<^ '11  811  to  812.  The  Ada  carried  seven  white  men 
**•  and  fourteen  Indians,  for  which  the  provisions  would 


26. 


Tin:  ADA. 


405 


lio  jjroperty  of 
not  entitled  to 

It  and  a  stern 
vessel  and  licr 
(1  in  the  valiia- 
)v  the  aecouiits 
nt,  J.  J.  (fijiy, 
boats,  whicii, 
;)7.  One-third 
the  boat  seized 
lor  one  season, 
)nt  one-third. 
'((,  stated  in  his 
I  he  used  was 
>nie  hunters  of 
her  stated  that 
it.  It  is  there- 
ited  States  that 
to  the  hunters, 
United  States 
u'e. 

3  mate  that  die 
pied  nine  da\s, 
ire  sufficient  to 
y  ten  days  after 
provisions  used 
the  schooner's 
rice,  and  half  a 
fore,  seem  that 
board  scarcely, 
(cessary  for  her 
ss  Louis  Olseii 
h  for  an  Indian 
r  a  vvliite  man 
ven  white  men 
•ovisions  would 


hii\e  cost,  for  the  twenty-one  days  from  seizure  to 
rhc  time  the  ])rovisious  failed,  a))[)roximatelv  >S1)((. 

There  is  no  evidence  in  the  Record  as  to  the  amount  "Vii^e^ss  ^^^' 
(if  ''annnunition,  ship  chandlery,  etc.,"  for  which  «daini 
is  made  in  the  liritish  Aroument, other  than  theannnu-R.,  i2i5,  Una 
iiition  referred  to  in  the  lo«>-  of  the  Ilnir,  the  value  of    "^• 
which  is  n(>t  determined  by  the  evidence. 

There  is  no  evidence  before  the  ("onnnissioners  as 
to  the  "bedding""  claimed  to  have  lieen  seized  on  the 
Add,  or  the  value  of  such  "  beddino-;"  or  as  to  the  value 
of  the  "nautical  instruments,  etc.,"  seized. 

The  item  for  8f)()0  for  "estimated  value  of  other 
iiiiconsumable  sealino-  outfit  and  articles  which  were 
(hiihtlcss  on  board  the  vessel,  but  which  can  not  be 
specially  mentioned,"  is  an  excessive  and  exorbitant 
claim,  which  has  no  foundation  in  fact  to  support  it. 

There  is  no  evidence  that  an  attt>rney  was  emph>yed 
))y  the  owners  of  the  vessel,  or  their  agent,  for  the 
defense  of  the  vessel  at  Sitka;  and  that  whatever 
services  were  performed  by  Mr.  Clark  as  the  ])roctor 
of  record,  which  ap])ear  to  have  been  solely  the  filing-  of 
a  claim  of  owner,  were  done  on  his  own  motion,  and  k,  ^1298,  line 
w  ithout  any  authority  whatsoever,  and,  further,  that 
the  owners  did  n(»t  become  liable  for  such  services. 

The  item  entitled  "Expenses  and  hardships  of  Ante,  p.  319. 
crew  22  at,  soi/,  -SAOO"  (which  has  been  erroneously 
iiududed  twice  in  the  schedule  of  damages,  and  a])- 
})ears  to  have  been  included  in  the  sum  total),  are 
IxTsimal  claims,  which,  not  having  been  presented  to 
the  Tribunal  of  Arbitration  at  Paris,  and  not  having 
hcen  included  in  the  "additional  claims"  referred  to  in 
the  preamble  of  an  appendix  to  the  Convention  of 
February  8,  lSi)6,  can  not  be  allowed  by  this  High 
Connnission,  and  could  not  be  in  any  event,  even  if 
there  was  sufficient  evidence  to  establish  such  claims, 
which  the  United  States  insist  there  is  not. 

(Jray,  the  managing  t)wner  of  the  Ada,  stated  in  liisK.,123,5,  line 
examination  that  lie  was  unable  to  tell  who  employed    "*"■ 


406 


TIIK    ADA. 


R.,  1226, 
24. 


It.,  122(5, 

42. 
K.,  122(i, 

45. 


E.,  1231, 
31. 


E..  1234, 

10. 
E.,  1235, 

15. 
K.,  1932, 

23. 


liclycii  ill  cuimcctioii  with  the  Aila,  ;ni<I  there  is  im 
eviih'iice  het'ore  th**  ('(•iimiissioii  slio\viii<i' thiit  lieKcii 
Wiis  eiii|ih>ye(l  hy  tlie  owners  or  their  M^iciit  in  tlic 
prepiirntioii  of  thi.s  chiiiii  ;it  ()tt;iw}i,  or  tliiit  the\'  Ix'- 
ciinie  ohli^ijited  t(»  piiy  him  iiiiy  sum  whiitsoever.  Tlic 
item  ill  the  Argument  oii  heiiiilf  of*  (irent  Mritnin  en- 
titled "  lielyeji's  clwir'^es  "  is  uii\vjirriiiite(l,  jiiid  has  no 
evi(Uiii('e  to  suj»j)ort  it. 

There  appears  in  the  s<'lie(hde  referred  to  an  item 

entith'd    "Personal    exjteiises  of  owiiei-   from    Voko- 

lint'liama."     The  evidence  discloses  that  (»ray,  the  inan- 

ajiiiifj;-  owner,  arrived    from    Yokohama   on  the  Aila 

line  early  in  A])ril,  1H87,  and  that  after  the  vessel  sailed 

,.     for    I'erinj''  Sea  he  returned  to  .lauan.      In   Octoher 

line  '^  ' 

or  Novemher,  1887,  he  received  a  cahlejiram  from 
jMoss,  his  agent  at  A'ictoria,  informing'  him  of  the 
line  seizure  of  the  schooner,  hut  he  did  not  return  to  Vic- 
toria for  a  i/i'((r  from  the  time  of  its  receipt.  A  letter 
was  ])r<»duced  which  was  received  hv  him  from  Moss 
in  the  latter  j)art  of  N(>vember,  l.S<S8,  relative  to  the 
bon(lini>'  of  the  vessel,  ii}»ou  the  receipt  of  which 
he  claimed  to  have  returned  to  Victoria;  hut  in  view 
of  his  former  knowled<:e,  and  |»resuiiiahle  correspond- 
ence with  his  aji'ent.  Moss,  tiie  im])lication  that  the 
seizure  was  the  immediate  cause  of  his  return  to  \'i<'- 
toria  can  not  he  admitted.  As  his  place  of  residence 
was  that  city,  and  has  been  such  up  t(»  the  pi-esent 
time,  the  (daim  for  his  exjieiises  from  Vokohaiua  to 
///.s  /ioini\  which  are  exorbitant  in  amount,  should  imt 
he  allowed  in  any  event. 

It  ap))oar8  from  the  testimony  of  Gray  that  Moss. 

^'"^the  ag'ent    of  the  vessel   and  of   the   PcKclopc,  alsd 

lineowmul  bv  (irav  in   1S87,  was  a   purchaser    of  seal 

jj^Q skins   in    the  Victoria    market.     As    ho    o-uaranteed 

the  payment  of  a  part  of  the  outfit  accounts  of  the 

Ada  in  1887,  and  as  there  is  no  evidence  tliat  he 

received  any  remuneration  for  his  services,  the  })re- 

,sunn)tioii  is  that  he  took  the  res})onsibility  of  agent 


THK    ADA. 


407 


imI  tlicrc  is  iiii 
Il<i'  tllJit  Hclvc;i 
!•  !to(Mif  ill  the 
r  tliiit  tlicv  Ih'- 

itsiX'NlT.        Tlie 

•<';it  Hriniiii  cii- 
<'<l,  {ind  has  no 

hmI  to  an  item 
V  from    Yoko- 
iray,  the  maii- 
Ji    on  the  A(l(( 
It'  vessel  sailed 
.      In   OetolRT 
il)leoTani  from 
1^'   liini  of  the 
return  to  Vic- 
(M*j)t.     A  letter 
n'ln  from  iMoss 
relative  to  the 
eipt  of   which 
fi;    but  in  view 
)le  eorres])oii(i- 
■Mtion  that  the 
return  to  \'ic- 
•e  of  residence 
to  the   j)reseiit 
Yokohama  to 
uit,  should  not 

I'ay  that  Moss, 
/'rui-IojH',  also 
diaser  of  seal 
le  guaranteed 
ricounts  of  the 
h'nee  that  he 
vices,  the  pre- 
)ility  of  agent 


;iihI  <^uarantor  for  the  pui'pose  of  seeuriuj;'  as  a  dealer 
the  seal  skins  which  the  Add  mi^^ht  take  in  her  north- 
(111  cruise,  and  that  the  catch  of  the.lf/f/  would  have 
heen  theref()re  marketed  at  \'ictoria. 

The  (daim  for  "estimated  catch,"  beinj;-  for  pros- 
pective profits,  can  not  he  allowed,  as  the  vessel  was 
ii  total  loss  to  her  owners. 

The  value  <>f  the  vessel  and  the  i)ersonal  vlaims  of  Aute, p.uis. 
JiiiiieH  Gaudiu  and  C.  A.  Lundherj^'  liavo  been  already  Ante,  p.  3i9. 
(•(iiisidered. 

The  United  States  a(bnit  that  tlu^  owners  suffered 
(iamag'e  by  reason  of  the  seizure  to  the  amount  of  the 
viilue  of  the  Ada,  in  the  condition  which  she  was  when 
sei/.ed,  in  the  market  of  Victoria  at  that  time,  of  the 
market  value  of  the  articles,  not  proi)erly  included  as 
ii  part  of  the  vessel  itself,  in  the  c(»ndition  and  at  the 
time  when  they  were  taken  from  the  schooner  by 
the  United  States,  and  of  1,876  sealskins  at  the  pnce 
ruling  in  the  market  at  Victoria  at  the  time  when  the 
\('ssel  would,  in  the  natural  course  of  events,  have 
returned  to  that  port  in  1887. 


the  triumph. 
Claim  No.  12. 

The  statomont  of  the  claiiii  of  t\w  owners  of  tliis 
vessel,  filed  at  Victoria,  sets  out  tlie  departure  of  the 
Tfiumph  for  liering-  Sea,  the  warninji"  <iiveu  l)y  the 
revenue  cutter  RicJiard  Bush,  and  alleges:  "That  in 
consequence  of  the  illegal  boarding,  searching,  warn- 
ing, and  threats  of  seizure,  made  use  of  liy  the  com- 
Pleadings,  niander  of  the  said  cutter,  the  master  of  the  Trkiuiph 
12.        '  'abandoned  his  intoidcd  royofje  into  Bering  Scar 

The  cross-examination  of  several  witnesses,  testify- 
ing before  the  case  of  the  Triuitqdi  was  o])ene(l, 
developed  the  tact  that  this  ve^  sel  had  been  sighted 
in  the  Bering  Sea  after  the  da}'  upon  which  she 
claimed  to  have  abandoned  her  vovage. 

The  first  witness  sworn  on  behalf  of  the  claimants, 

and  the  only  witness  giving  testimony  bearing  directly 

uj)on  the  occurrences  at  the  time  of  the  warning,  was 

Ilerman  Smith.     He  stated  that  he  was  unite  of  the 

li.,  1396,  line  vessel  duriiig  her  voyage  in  1S87;  that  the  captain 

fjjj'0^3;^^"'^' was  dead,  and  that  he  Imd  no  log  of  the  voyage. 
R.,  1397, line      The    Ty'nimph    lefV    \  ictoria    foi    her    vovage    to 
10,12.'       Bering  Sea  "about  the  2()tli  or  21st  of  ^lay."     Slie 
carried  four   canoes   and  a   crew   of  eight   Indians. 

R.,  1397,  line  Before  eiiteriuj*-  Berinj>-  Sea  52  or  54  seal  skins  were 
17.  .   1  r^  n 

taken. 

( )u  the  4tli  of  August,  while  lying  Itecalmed  at  tlie 

entrance  to  Inimak  l^iss,  at  8  o'clock  in  tlie  morning, 

she  was  boarded  bvanolhcer  from  the  United  States 

R.,  1397,  line  ,,         i>-  "i        i    i>      i         i  •        i    .i 

^0.  revenue  cutter  Birhard  Bush,  who  examined  the  ves- 

sel, returned  to  tlie  cutter,  whereupon  Captain  Slu'p- 

408 


(nvners  of  tliis 
L']Kii-tiire  of  tlic 
>:  ^iveu  by  tlie 
'ges:  "That  in 
nircliiiio',  warii- 
)f  by  the  coin- 
>f  the  Triumph 
yiff  Soar 
tiiesses,  testify- 
'<  was  o])ened, 
I  been  sigliteil 
)0ii  wliich  she 
e. 

"  tlie  claimants, 
•earing-  directly 
e  warning-,  was 
as  mate  of  the 
lat  the  captain 
lie  vovajxe. 


U' 


vo^'ag-e    to 


)f  :\[ay."  She 
eig-lit  Indians. 
3ul  skins  were 


ecalnied  at  the 
n  the  morning, 
United  States 
nil  led  the  ves- 
Captuin  Sliej)- 


THE    TRIUMPH. 


409 


aid,  commanding-  the  Ihtsh^  hailed  the  Triumph  and 
warned  her  not  to  enter  Bering-  bea. 

The    ca])tain  of  the  Triumph,   the   mate,  and  the 
hulians,  Smith  says,  talked   over  the  matter  (►f  con- 
tiiuiing- or  abandoning-  the  voyag-e,  the  resnlt  being- r.,  1398,  uue 
that  the  captain  g-ave  Smith  to   understand  "that  he    '*^* 
tliought  it  wonld  be  best  to  g-o  on  some  different  seal- 
ing yronnd." 

Tlie  mate  says  "he  was  compelled  to  enter  Bering 
Sea  because  of  the  g-ale   that   s))ran<^  up  that  nig^ht, 
and  we  were  so  close  inshore  that  we  either  had  to  R-»  1398,  line 
U(i  on  the  rocks  or  run  before  the  e-ale." 

Q.  But,  as  a  matter  of  fact,  tbe  vessel  entered  B  ring 
Sea? 
A.  Yes,  sir. 

(I,  And,  as  you  understood  it,  she  made  in  what  direction? 
A.  ^Ymierly. 

The  huntinj>-  boats  of  tlie  vessel  were  lowered  on  K-.  i400,  line 
tlic  5th  day  of  Aug-ust,  the  day  after  the   warning-, 
when  19  seals  were  taken,  and  on  the  following  days 
thereafter,  with  the  results  stated: 

Ang-ust  Sth,  9  seals;  9th,  42;  lOtli,  34;  Utli,  33; 
l-'th,  25;  13th,  32;  14th,  -24;  15th,  34;  lOtli,  3; 
17th,  35;  18th,  2;  l!)tli,  IS;  2()th,  27;  2lst,  4;  22d, 
14:  23d,  33;  24^h,  15;  25th,  33. 

The  Triumph,  therefore,   entered   Bering  Sea  the 
iiiulit  of  August  4,  and  the  next   day  commenced 
hunting,  and  continued  without  interru))tion,  save  by  R.,  UOi,  line 
the  weather,  until  the  2()th  of  tliat  month 

What  claim  for  damages  this  little  vess<'l  of  15 
tmis.  whicli,  according  to  the  mate,  hunted  more  days  R.,  1396,  line 
wliiU'  in  the  sea  than  any  vessel  a  detailed  accmint 
III  whose  voyage  is  given  in  the  record,  and  which 
rciiiMined  In  tii«'  sea  until  the  2(itli  of  August,  can 
ha\e  against  the  Ciovernment  of  the  ("uited  States, 
that  (}overiiment  can  not  cimceive. 

The  mate,  Sniith,  uiakes  some  vagtie  asserti<ms 
alioiit  being  o^'  tlie  sealiiig  grounds,  but  his  testimony 
•^lioiild  be  scrutinized  verv  carefully  in  the  light  of 


410 


THE    THIIMPH. 


the  statement  of  this  chiini,  which  u'ives  tlie  infoniia- 
tioii  that  the  intention  of  the  chiiniants  was  to  estal)- 
lish  the  fact  that  their  vessel  did  not  enter  Ik'rin^'  >Si'a. 
The  testimony  bearin;'-  upon  the  h)cation  and  move- 
ments of  tliis  vessel  between  Auji'ust  4  and  August 
2G  conclusively  establish,  s  fhnt  she  hunted  contimi- 
ously  durin<>'  that  p*  !■!),!,>  •  i'i<>-  westerly  between  the 
northward  of  l^nimak  f'.u^s  ;  nd  Four  Mountain  Pass, 
R.,  I486,  line  takino-  a  course  far  enouu'h  to  the  northward  s  >  tliat 


14. 


Boii'oslof  Volcano  was  over  50  miles  to  the  south. 


R.,  1402,  line     Q.  AYe  were  tfilkiiig  abont  this  storm.     When  this  storm 
39.  was  blowing-  you  into  Jiering  Sea,  after  you  got  through 

tTniinak   Pass,  did  you  change  your  course  to  go  to  the 
westward? 

A.  So  far  as  I  can  recollect,  our  course  iras  ahrays  westerhj 
after  we  went  througli  the  IJuiuiak  Pass. 

R.,  1402,  line      The  vessel  then  hunted  for  twenty-one  days,  durinf)- 
^^'  which  time  she  could  cover  but  a  small  distance,  as  a 

vessel  is  unable  to  sail  far  while  her  cinioes  are  out. 

E..  1403,  line     Q-  How  many  miles  of  ground  a  day  \\  U'  cinoes  cover  in 
2.  an  ordinary  sealing  day  while  sealing 

A.  Twelve  to  15  miles. 

i).  And  every  day  that  the  canoe    h.    ,y,  «:*  off  your  vessel 
the  vessel  would  go  about  12  miles  f 
A.  Yes. 
^'X'-  ^'°*®     Q-  And  you  went  out  of  Foiu-  Mountain  ]  itss  ? 
^^''^''-  A.  Yes. 

(i>.  And  you  think  your  course  was  always  westward? 
A.  Aliv<(j/s  ircsterli/,  wind  (oul  ircatlwr pcrmitthig. 
(}.  From  Tnimak  Pass? 
A.  From  I'nimal;  rnsn. 

'^rhi.-;  witness  was  examined  on  behalf  of  the  claim 
of  the  Ariel: 

R.,  I486,  lino     i).  And  you  were  in  Bering  Seu  i     ' :'''T,  I  believe? 
5.  A,  Yes,  sir. 

Q.  You  cruised  southeast  of  the  Islands  in  IS.SS,  and  you 
cruised  in  the  vicinity  of  the  P>ogoslof  Volcano  in  1SS7  ? 
A.  How  licav  (i.)  .  t  u  call  the  vicinii^y  ? 
Q.  VVe'';.  .I'oout  ."i<>    '.iles  to  the  northward. 
A.  Oil    no:  it  w.,s  iax'ther  ofl"  than  that. 

The  witness  a])[)arentl3'  remembered  that  his  testi- 


OS  tlu'  infoniifi- 
ts  was  t(»  estiih- 
iter  Hei'ino'  Sea. 
itioiiniul  luovo- 
4  and  Aiioust 
luiitod  foiitiiui- 
rly  between  the 
Mountain  Pass, 
thward  s  >  that 
o  tlie  soutli. 

When  this  storm 
you  got  tlirougli 
rse  to  go  to  the 

18  alirayH  westerhj 

ne  days,  durini;' 
II  distance,  as  a 
inioes  are  <nu. 
"  canoes  cover  in 


" :'  off  your  vessel 


i  ass? 

ys  wevStwiird  ? 
rmitting. 


It'  of  the  claim 


I  believe '! 

in  1.S.S8,  and  you 
ano  in  1887? 


1  tliat  his  testi- 


THE    TRIUMPH. 

UK  111  \  ini^lit  liave  n  bearinji-  on  tlie  chiiin  of  the  Tri- 
iiiniili,  for  to  the  next  ([Uestion  whidi  was  asked,  "How 
tar  to  tlie  northward?"  he  answered,  "I  did  not  hunt 
to  tlie  northward;   I  hunted  to  the  westward  in  1887." 

This  testimony  establishes  the  fact  that  the  vo^'aJi•e 
(ii'ilie  Triuiiq)!/,  in  1887,  covered  the  waters  between 
riiiiuak  Pass  and  Four  Mountain  Pass,  at  a  distance 
to  the  northward  more  than  50  miles  from  Jiogoslof 
\'(ilcano. 

Ill  the  attempt  of  the  witness  to  avoid  the  effect  of 
this  TesriiHony,  he  said  that  he  did  not  seal  to  the 
northward  of  J^(>o'oslof  in  1887,  l)ut  to  the  westward. 
When  com])ared  with  his  statement  that  the  boats  of 
the  TriiiDipJi  \vere  lowered  on  the  next  day  after 
(Mit('rin<i-  Unimak  Pass  and  before  the  vessel  had  ])ro- 
(•(•('(led  to  the  w<'stward,  and  that  thereafter  hunting 
was  carried  on  for  a  ])eriod  of  about  twenty  days, 
this  witness  is  convicted  either  of  dense  ignorance  as 
to  the  location  of  his  ve.ssel  and  the  geogra})hy  of 
lioiiug  Sea,  or  of  making  a  false  statement  regarding 
the  course  of  the  Triioiijtii  in  1887. 

The  course  of  the  Tiiiiinj)Ji  from  north  of  Unimak 
I'ass  to, the  westward  at  a  distance  more  than  50  miles 
to  the  northward  of  Hogoslof  \ Olcano,  and  fi'ora 
north,  of  liogoslof  southwest  to  Four  Moimtain  Piiss, 
world  take  the  schooner  through  tlj^e  waters  hunted 
over  by  the  Kate  in  188}),  Al/reil  Adams  in  1887, 
Mill//  Ellen  in  188(),  the  Tlicn'sa  in  188(),  and  Mar  if 
I'JIi'ii  in  1887.  The  Anna  lire/,;  ]V.  P.  Sai/n-an I,  iuul 
the  Ihiljiliin  were  all  seized  ])etween  54'^  30'  and  55°, 
Mild  Kit''  and  1(18^,  and  if  the  Triumph  sailed  from 
thi'  northward  of  Unimak  Pass  westward  at  a  «I's- 
taiice  50  miles  north  of  Hogoslof,  its  vova<>'e  would 
hi<iirecth'  throu'ih  the  waters  in  which  these  vessels 
wi  re  hunting  when  seized,  and  which  the  Argument 
on  behalf  of  (ireat  Britain  alleges  are  "the  best  seal- 
iiii:  "iroirnds  in  Berino-  Sea." 

Ivi'fer  to  the  charts  or  maps  cited  in  the  British 


411 


412  THE    TRIUMPH. 

Argument  as  bearing-  upon  the  locality  where  seals 
are  found  in  Bering  Sea,  and  trace  the  voyage  of 
the  Tnvmj)li.  She  sailed  direc'ly  over  the  so-called 
sealing  grounds. 

That  the  Triainph,  which  sealed  some  21  (lavs  out 

of  a  i)ossil)le  23,  between   165^  30'  and  160*^,  and 

54°  30'  and  5')°,  did  not  sustahi  any  damages  bv 

reason  of  the  warning  given  by  the  United  States 

revenue  i^utter  llichard  Rush  is  abundantly  established. 

If  the  Ttiumph  had  been  dei)rived  of  an  opjior- 

tunity  to  take  seals  the  results  secured  by  her  hunters 

migl  t  certainly  be  exjiected  to  establish  the  fact. 

Arg,  on  be-      The  Argument  on  behalf  of  Great   Britain  states 

Great  Brit- that  the  Mdrtf  EUcu  is  the  vessel  wliich  should  be 

ain,p.79.    made  use  of  as  a  basis  for  calculating  the  catch  of 

other  schooners.     The  Marif  Ellen  made  an  average 

catch  of  6.74  seals  per  day  from  the  5th  of  A.ugiist. 

The  statement  is  made  in  the  Argument  (p.  79,  line 

9)  that  boats  have  one-third  more  working  power 

than  canoes,  wliich  would  make  the  average  daily 

catch  of  the  Mary  I'JUof,  had  she  used  canoes,  5.055. 

The  Triumph  carried  four  canoes,  making  her  average 

daily  catch  for  all  the  hunters  20.22  skins,  which, 

nndtij)lied  by  21,  the  number  of  days  she  hunted,  her 

total  catch  would  be  424.     Ikit  as  a  matter  of  fact  the 

43.    '        Triumph  took  48'j  seal  skins  during  that  })eriod. 

This  calculation,  made  upon  the  basis  which  is  the 
most  advantageous  that  could  possibly  be  obtained 
from  the  Record,  fails  to  establish  the  claim  that  the 
Triumph  was  deprived  of  the  opportunity  to  take  seals 
by  reason  of  not  venturing  upon  the  "best  sealing 
"•rounds." 

Some  vague  testimony  was  adduced,  bearing  ujxm 
the  duratiim  of  the  voyage  of  this  small  vessel,  l)ut 
the  United  States  rest  uj)on  the  general  testimony 
regarding  the  close  of  the  season  in  iiering  Sea,  and 
believe  that  the  vovage  of  the  Triumph  was  coni- 
})leted  on  the  26th  day  of  August,  having  continued 


lity  where  seals 
tlie  voya<>'e  of 
er  the  so-called 

me  21  davs  out 

and  16!)'^,  and 

IV  damag■e^s  bv 

United  States 

ntlyestabUslied. 

[I  of  ail  oppor- 

b}'  lier  hunters 

sli  the  fact. 

t   liritain  states 

hicli  should  be 

ig  tlie  catch  of 

ade  an  averajje 

5th  of  August 

iient  (p.  79,  line 

working  power 

}  average  daih- 

1  canoes,  5.050, 
:ing  lier  averaj^e 

2  skins,  which, 
she  hunted,  her 
latter  of  fact  the 
Kit  })eriod. 

isis  whicli  is  the 
>ly  be  obtained 
)  claim  that  the 
lity  to  take  seals 
)  "best  sealinji' 

I,  bearing  upon 
lall  vessel,  but 
leral  testimony 
iering  Sea,  and 
ntj)Ii  was  coni- 
viiiii"  continued 


THE    TRIUMPH.  413 

without   inteiTuj)tion   and    without  reference  to  the 
waniing  given  by  the  cutter  Richard  Hush. 

T'<e  nature  of  the  testimony  depended  upon  to 
tstaldish  a  claim  for  a  season  extendin<>-  to  the  loth 
dav  of  September  removes  all  doubt,  if  any  exists, 
MS  to  the  duration  of  the  voyage. 

().  When  you  left  for  the  voyage  had  you  any  conversation  R.,  1400,  line 
witli  the  owner  of  the  vessel  as  to  tlie  time  that  you  were  to    ^^^ 
remain  in  Bering  Sea  in  1887  f 

A.  Well,  yes;  several  conversations  on  that  subject. 

Q.  To  what  effect? 

A.  That  from  hearsay,  from  those  who  had  been  to  Bering 
Sea  before,  that  we  could  make  a  good  catch  the  latter  part 
(it  August  and  the  beginning  of  September.  At  that  time  a 
tine  spell  of  weather  is  expected,  and  1  had  a  tlntrough  under- 
standing with  Mr.  Byrns,  myself  being  on  a  lay,  that  the 
vessel  would  be  provisioned  to  such  an  extent  of  time  that  it 
would  enable  us  to  stay  until  we  were  driven  out  by  the 
weather  or  could  not  find  any  more  seals. 

Q.  Had  you  been  in  Bering  Sea  before  that  time?  R.,  1403,  line 

A.  No,  sir. 

i).  Had  the  captain  ? 

A.  No,  sir. 

I'here  is  no  testimony  in  the  record  upon  which  to 
base  the  claims  for  "pro})ortioii  of  Warren's  expenses 
t(»  Ottawa,  8152,"  and  "expense  of  owner, >i200,"  and 
"Ik'lyea's  charges,  8250,"  and  no  testimony  is  cited 
on  behalf  of  Great  Britain. 

The  Government  of  the  United  States  contends  that 
the  Triumph  continued  her  voyage  after  the  warning 
without  interruption,  secured  an  unusually  large 
catch,  and  having  hunted  the  full  season,  sailed 
for  Victoria,  wiiere  her  catch  was  sold,  and  that  no 
damage  resulted  to  the  owners  from  the  warning 
^i\en  by  the  cutter. 


54. 


THE  JU ANITA. 


Claim  No.  13. 


E.,  1339, 
41. 


R.,  1340, 
34. 

K.,  1339, 
20. 


R.,  1343, 
52. 

R.,  1338, 
40. 

R.,  1340, 
61. 


R.,  1340, 
68. 


liue 


Tlie  Juanita  entered  Bering-  Sea  on  the  2(1  day  of 
July,  1889,  and  connnenced  lier  sealing  oijerations  on 
the  10th  of  July.     She  was  seized  on  the  31st  of  tlie 

li^es-ime  iiioiith  by  ('aptain  Shepard,  of  the  United  States 
revenue-cutter  Ilichard  Ititsli. 

line  '■rii(;,  crew  consisted  of  14  Indians,  the  captain,  and 
3  sailors.  There  is  no  evidence  bearing  upon  the 
number  of  canoes  carried  by  the  Jiiai/ifa,  ])ut  the  fair 
])resuniption  is  that  she  had  7,  inasmuch  as  she  car- 

^'"*'ried  14  Indians.  The  stern  boat  was  not  used  for 
hunting  to  any  extent. 

hue  '^[^\^^^  cutter  seized  (519  seal  skins  and  the  spears  of 
the  Indians. 

line  There  is  no  evidence  that  any  seals  were  taken 
after  the  31st  da}'  of  Juh'  or  that  the  boats  wcri' 
lowered. 

Captain  Clarke,  also  one  of  the  owners,  testified: 

line     Q.  Up  to  what  time  did  you  intend  to  stay  in  tl»e  sea? 

A.  We  intended  to  stay  in  the  sea  up  to  the  beginning  of 
Sejjtember. 

Q.  Had  you  arranged  that  before  you  left  Victoria? 

A.  To  the  best  of  my  belief  at  tlM?  present  time,  and  what 
transpired  afterwards,  I  bc^lieve  the  10th  September  was  tlic 
day  mentioned  by  Mr.  Hall.  He  said  that  we  could  stay 
longer.  I  think  that  he  had  had  information  from  someone 
who  had  been  there  that  seals  had  been  caught  in  September, 
and  that  the  season  was  not  actually  closed. 

The  answer  of  the  witness  not  being  satisfactory, 
he  was  pressed,  on  direct  examination,  for  the  purpose 

414 


11  tlie  2(1  (lay  of 
ig  operations  (111 
itlieSlst  of  till- 
le  United  States 

lie  captain,  and 
ariiij^'  upon  the 
/}f<i,  ])ut  the  fair 
iiu'li  as  she  ciir- 
!is  not  used  for 

1(1  tlie  spears  of 

als  were  taken 
the  boats  woiv 

aiers,  testified; 

;ay  in  the  sea? 
I  the  beginuiiijj  of 

ft  Victoria? 
lit  time,  aud  what 
ieptember  was  the 
at  we  could  stay 
ion  from  someone 
iglit  in  September, 
d. 

in<>-  satisfactory, 
,  for  tlie  purpose 


THE    JUANITA.  415 

of  ohtaiuino-  an  answer  "iiving  a  later  date  for  the 
closino'  of  the  sealiiig-  season: 

i).  And  it  was  your  intention  to  stay  until  the  beginning  K-,  i:-*i,  line 
(if  Sei)teinber  that  year — up  to  about  the  14th  ?  ^^• 

A.  1  think  that  the  10th  was  the  day  mentioned. 

The  only  other  testimony  in  the  Record  bearing 
upon  the  pro})osed  duration  of  the  voyage  of  the 
.huni'ia    was    given    by  Richard    Hall,   one    of  the 

owners: 

(^  What  length  of  voyage  was  your  vessel  fitted  out  for  R.,  1349,  line 
wlicii  she  went  to  JJering  Sea?  2''* 

A.  When  the  captain  left  1  told  him  to  stay  on  until  some 
tiiiK'  ill  September.    I  do  not  remember  exactly  what  date. 

().  Had  you  information  that  there  was  any  use  staying 
until  September? 

A.  Yes;  1  was  told  by  some  one  in  the  sealing  business 
tliai  there  was  sealing  to  be  done  in  September. 

(^  x\.nd  you  made  up  your  mind  to  try  that? 

A.'  l>.v;  I  tohl  the  captain  to  stay  in  till  iSei>t('mbi'r,  if  pos- 
sible. 

On  cross-examination  this  witness  testified: 

().  Who  told  you  that  they  got  seals  in  September  in  Her-  k.^  1350  Une 
ing-  Soa?    ■  "(5. 

A.  1  am  not  certain,  but  I  think  that  it  was  Victor  Jacob- 
sen,  the  captain  of  the  Minnie. 

().  Were  you  told  that  they  caught  seals  in  September  the 
year  before — 18SS? 

A.  It  was  in  the  fall  of  1S88  that  he  told  me.  He  told  me 
to  liiivc  the  schooner  stay  in  September,  as  there  had  been 
scaling  in  September. 

(}.  Did  he  say  that  they  had  been  sealing  in  September  in 

18S,Sf 

A.  I  will  not  say  that,  but  he  advised  me  to  have  the 
scliooiier  stay  in  in  September. 

And  again: 

<i|.  You  outlitted,  you  say,  until  the  middle  of  September?  ^^-'.i^Sl,  line 
A.  1  will  not  say  that  1  told  him  to  stay  until  any  certain      '^' 
(late  in  September.    1  think  that  it  would  be  about  the  10th 
(if  Soptemli)er  that  he  would  be  supposed  to  leave  there. 

I'lioii  this  testimony  the  claim  is  based  that  the 
scaling  voyage  of  the  Jiuutita  would  have  ended  on 
tlu'  15th  day  of  September.     The  testimony  is  that 


4i(; 


THE    J U ANITA. 


vufj^ue  I'uinoi' 


K.,  1447,  line 
46. 


R.,  1119,  line 
63. 


of  two  owners,  it  is  based  upon  a 
that  one  vessel  had  taken  seals  in  September  in  the 
year  1888,  and  it  was  eoncluded  that  it  might  he 
])rofitable  to  attempt  to  ])rolon«i-  the  voyage  of  tlif 
Juaiiita  nntil  the  l()th  of  8ei)tendier. 

It  is,  of  course,  to  the  interest  of  these  claimants 
to  extend  the  sealing  season  as  far  as  possible  intd 
September,  but  this  testimoii}'  certainly  will  not  war- 
rant the  finding  that  the  time  during  which  they  were 
deprived  of  the  use  of  their  schooner  extended  until 
the  loth  day  of  September. 

The  Hi<»li  Commissioners  have  more  authentic 
testimony  of  the  basis  of  the  rumor  u])on  which  Mr. 
Hall  based  his  testimony  regarding  the  })roposal  td 
remain  in  Bering  Sea  until  the  10th  of  September 
than  Mr.  Hall  himself  had. 

Capt.  Victor  Jacobsen,  who  is  also  a  claimant,  was 
examined  relative  to  the  voyage  of  the  Mountain 
Chief  m  1888: 

Q.  I  am  talking  about  whether  you  are  certain  you  hunted 
after  the  3d  of  September? 

A.  We  went  out  through  the  Pass,  but  we  hunted  to  tlie 
last.  We  left  the  sealing  ground  on  the  3d  of  September  in 
the  sea,  and  went  and  tilled  water,  and  we  lowered  and 
sealed  after  we  tilled  water  and  come  out,  the  same  day  we 
come  out  or  the  day  before. 

Q.  You  practically  abandoned  your  hunting  then  on  the 
3d  of  September? 

A.  Out  in  the  sea,  I  suppose.  We  come  and  tilled  water 
and  then  we  hunted  after  that. 

Q.  You  lowered  in  the  Pass. 

A.  Yes;  lowered  inside  the  Pass. 

This  is  the  only  sealing-  schooner  that  hunted  in 
Bering  Sea  into  September  of  the  year  1888. 

The  Jnanita  was  in  Bering  Sea  in  the  year  1888 
and  terminated  her  voyage  August  20. 

The  general  testimony  relating  to  the  close  of  tlie 
sealing  season  fixing  it  as  between  the  20th  and  '2h\\\ 
of  Auirust,  and  the  convincins:  character 


a  vnjj^iie  riimoi' 
)ei)teniber  in  the 
hat  it  iniglit  Ir' 
i  voyage  of  the 

these  cUiiniants 
as  possible  intd 
lily  will  not  war- 
which  they  were 
;r  extended  until 

more   authentic 

u})on  which  Mr. 

the  proposal  to 

th  of  September 

)  a  claimant,  was 
[)f  the  Mountain 

certain  you  bunted 

b  we  hunted  to  tlie 
3d  of  September  in 
d  we  lowered  and 
t,  tbe  same  day  we 

anting  tben  on  the 

lie  and  tilled  water 


r  that  hunted  in 

ear  1888. 

n  the  year  1888, 

10. 

)  the  close  of  tlie 

he  20tli  and  'Jotli 

icter  of  that  testi 


THE    .JUANITA. 


417 


)nv  is  sufficient  to  outwei"h  the  vaj>ue  testimony 


111* 

of  these  two  owners  given  in  their  own  behalf. 

'Vhc  JunnifdWdH  built  in  187').     Her  gross  tonnage    6«  "^  '  '"^ 
was  40.21. 

The  fact  tlujt  the  Juunita  entered  Bering'  Sea  on 
rlic  2d  day  of  July  and  carried  on,  without  interrup- 
tion, her  hunting'  operations  until  the  31st  of  July, 
taking  in  the  meantime  619  seal  skins  for  which,  even 
;it  the  extortionate  value  of  Sll  ])er  skin,  S6,842  is 
I'lainied,  when  comjjared  with  the  claim  made  for 
2,102  skins,  which  would  have  been  taken  during- 
the  balance  of  the  season,  and  for  which  823,122  is 
claimed,  is  convincing'  evidence  of  the  injustice  of 
making'  use  of  a  calculation  of  the  jm>spective  catch 
of  seals  as  a  basis  for  estimating'  the  damages  sutiered 
lt\  these  vessels  whose  voyag'c-s  were  interrujited. 

I'he  demand  for  823,122  for  the  use  of  a  vessel  of 
40  tons  for  a  period  of  from  twentv  to  twentv-five 
(lays  is  too  gTOssly  extortionate  t<»  be  ccnisidered  by 
ii  tribunal  of  justice. 

The  vessel  was  worth  about  82,000,  and  that  she 
could  earn  over  five  and  one-half  times  her  value 
within  twenty  or  twenty-five  days,  and  at  the  rate  of 
oNiT  8250,000  a  year,  is  so  imjiossible  that  justice  will 
not  permit  of  the  use  of  any  such  basis  for  estimat- 
iiiu'  the  future  earnings  of  this  vessel. 

This  vessel  is  entitled  to  recover  from  the  Goverii- 
incnt  of  the  United  States  her  charter  value  from  the 
aist  day  of  July  to  the  20th  or  25th  of  August, 
measured  by  the  rule  of  law  stated  in  the  Argument 
relative  to  the  measure  of  damages  in  cases  of  partial 
loss,  in  addition  to  the  value  of  619  seal  skins  at  the 
market  price  obtaining  at  Victoria  at  the  time  the 
skins  would  have  been  offered  for  sale. 

B  s 27   .■  .^■:      ■  'r:  ■  .. 


the  fathfindbr. 
Claim  No.  14. 

^i2^iV-''iT  ^^''^  l*(dhfimler  entered  Bering  Sea  for  a  sealing 
i5()3,'i'iii'ovoya«i:e  on  five  1st  day  of  July,  1881).  She  carried 
^*^-  five  hunting  boats,  and  a  crew  of  nineteen  or  twenty 

white  men.  The  United  States  reveinie  cutter  R'tch- 
'R.,m\,Yu\e>ard  Rash  seized  the  Pathjimler  on  the  29th  day  of 
July,  at  11  o'clock  in  the  morning.  The  seizing  offi- 
cer directed  the  removal  to  the  cutter  of  8;");")  seal 
skins,  7  shotguns,  4  Winchester  riHes,  and  some  am- 
munition of  j)racticall\'  no  value. 
R.,  1505,  linos     y^\\\vA\u  Muusio  testified  that  the  guns  orginally 

cost  Sof)  each,  and  the  rifles  s-Ji!  each. 
^'^hai'i'  I'.f     111  fli«  argument  on   behalf  of  (Ireat  Britain  this 
Great  lu it- statement  is  made: 

aiii.   ]i.  47; 

H..    1571,     111  the  case  of  the  Pathfiiuler,  the  schooner  was  owned  by 

hue  41.       jjn(|  registered  in  the  name  of  a  British  subject,  but  one 

Be{!htel,  who  was  a  iiative-boru  citizen  of  the  United  States, 

had  purchased  a  half  interest  in  the  profits  of  the  sealing 

voyages  of  the  vessel. 

The  United  States  accejits  the  admission,  made  on 
behalf  of  Great  Ihitain,  that  Andrew  J.  liechtel  was 
ec^ually  interested  with  William  Munsie  in  the  venture 
of  the  Patlijii/ifcr  m  the  year  188!),  l)ut  assert  that 
K.^^1556.  line  Andrew  J.  Bechtel  was  also  an  owner  of  one-half  of 
the  vessel,  resting  this  claim  -n})oii  the  testimony  of 
William  Munsie. 

The  transaction  pertaining  to  the  Pathfinder  was  in 
all  its  detail  exactly  the  counter[)art  of  the  transac- 
tion between  Munsie  and  Bechtel  with  reference  to 
\nte,337.      f\^Q  Carolcna,  and  at  another  place  in  this  argument 

418 


a  for  a  sealing 
).  Slie  carried 
eteoii  or  twenty 
lie  cutter  Bicli- 
e  2 9 til  (lay  of 
riie  seizing- otH- 
er  <>t"  Sf);")  seal 
,  and  some  ain- 

i>'uns  oro'inallv 
I. 
eat  Britain  this 


er  was  owned  by 

subject,  but  one 

lie  IJuited  States. 

ts  of  the  sealiug 

issioii,  made  on 
J.  lieditel  was 
3  in  the  ventiiro 
but  assert  that 
•  of  one-half  of 
le  testimony  of 

itltfinder  was  in 
of  the  transac- 
th  reference  to 
L  this  arjrument 


THE    I'ATHFINDER.  419 

the  business  relations  existing-  between  these  two  men 
has  been  discussed  at  length,  and  a  rcjietition  for  the 
jiiii-pose  of  the  claim  of  the  I'atJiJindcr  is  deemed 
uiiiit'cessary. 

Tlie  claim  of  the  /'(iflijiiider  being  entirely  for  the 
value  of  seal  skins  actually  taken,  and  for  the  use  of 
tlie  vessel  between  the  time  that  she  was  seized  in 
IV'iing-  Sea  and  the  close  of  the  sealing-  season,  no 
claim  being  made  for  the  vessel  itself,  even  if  Bech-  . 
tel  waii  not  a  half  owner  of  the  bottom  of  the  ship, 
ills  interest  is  an  equal  one  with  William  ^lunsie,  and 
lie  is  a  half  owner  of  the  claim  against  the  Goverii- 
iiicnt  of  the  United  States. 

lu  this  case,  as  in  all  other  cases  wherein  an  Ameri- 
caii  citizen  is  interested  as  a  claimant,  the  position  of 
the  (lovernment  of  the  United  States  is  that  no  citi- 
zen owiii"-  allegiance  to  it  can  recover  damages  before 
rliis  High  Commission  for  any  injury  sustained  by 
that  citizen  while  violating  the  sovereign  rights  and 
the  imiiiicipal  laws  of  his  own  country. 

AVilliam  Mimsie,  testifying-  in  his  (uvn  behalf,  stated: 

(^  But  you  did  not  give  anj"^  instructions  to  your  captain  r.,  1505,  lino 
as  to  liow  long  she  would  stay  there !  16. 

A.  I  did  not;  I  left  it  to  his  own  discv  ''^n  to  stay  as  long- 
as  he  could  while  the  weather  permittr  ', 

And  on  cross-examination  this  witness  said: 

^).  Did  the  i'rt//j^«<?^T  ever  seal  in  the  Bering  Sea  in  the  R.,  1551,  line 
iiioiith  of  September  prior  to  the  year  when  she  was  warned    '^^■ 
01  seized? 

A.  I  do  not  know. 

().  iiy  your  direct  testimony,  when  you  referred  to  October,  r.,  1553,  line 
do  you  mean  to  be  understood  that  there  were  any  instruc-     57. 
tidiis,  or  contemplation  of  any,  at  the  time  of  the  outtit  of 
tlie  I '((tJi finder  that  she  was  to  remain  or  seal  in  the  sea  in 
October?  . 

A.  No,  sir. 

().  Or  that  she  was  to  remain  or  seal  in  the  sea  in  Sep- 
toniber? 

A.  No;  it  was  left  to  the  discretion  of  the  captain. 


420 


THE    PATHFINDER. 


10. 


R,,^155I,  line     Q.  ])|(i  that  include  in  your  contemplation  sealing  beyond 
the  let  of  September? 

A.  No;  I  would  |not|  say  that  it  contemplated  sealing 
beyond  that  time.  It  contemplated  sealing  as  long  as  he 
could  remain  in  the  sea  for  weather  and  provisions.  You 
will  understand  that  we  usually  i)ut  provisions  on  board  in 
case  they  met  with  bad  weather  coming  home.  They  are  not 
going  to  starve. 

This  testimony  hears  upon  all  tlie  testimony 
adduced  on  belialf  of  (jreat  Britain  of  a  similar  nature. 
Wlien  a  witness  is  (|U'^tioned  as  to  the  time  that  lie 
outfitted  a  boat  tore  \  in  Berinj;-  Sea,  the  answer 
sustains  about  the  s  elation  to  the  len<>'th  of  the 

8calinj>'  season  in  Herinj"-  Sea  as  an  answer  <;'iven  to  a 
question  relative  to  the  number  of  seals  that  a  captain 
believed  he  was  <»oinj)^  to  take  in  the  liermjr  Sea  bears 
to  the  actual  catch  that  would  have  been  made. 

The  testimony  of  this  witness  established  the  fact 
that  to  ('siptain  OT^eary  was  intrusted  the  decision  as 
to  when  the  Pathjixdcr  shoidd  discontinue  her  hunting 
vovaue  in  the  'Merino-  Sea. 

C/aj)tain  O'Leary  was  examined  on  behalf  of  the 
claimant: 

Q.  In  lS8f)  for  what  time  did  you  outfit? 

A,  ITiitil  abov.t  the  1st  of  Sei)tember.  I  generally  allowed 
to  leave  Bering  Sea  about  the  1st  of  September  or  the  last 
of  August. 

Q.  Did  you  evir  fit  out  for  a  later  season  in  Bering  Sea! 

A.  Not  at  that  time. 

Cross-examined  relative  to  a  voyage  in  the  year 
1890,  he  said: 

Q.  What  time  did  you  leave  that  year? 

A.  I  left  there  some  time  toward  the  end  of  August. 

Q.  The  fact  is  that  that  season  you  hunted  in  the  sea 
about  the  usual  time? 

A.  Yes. 

Q.  How  late  in  August  did  you  leave  ? 

A.  About  the  25th  of  August,  as  far  as  I  can  remember, 

Q.  You  never  were  in  there  later  than  the  25th  of  August* 

A.  I  do  not  think  so.  That  was  the  last  year  I  was  in  the 
Bering  Sea. 


R.,  773,  liue 
44. 


R.,  770,  line 
35. 


- 


on  sealing  beyond 

teniplated  sealing 
ng  as  long  as  he 
provisions.  Vou 
isions  on  board  in 
uw.    They  are  not 

tlie  testiinonv 
I  siinilur  nature. 
\]ie  time  that  lie 
■^ea,  the  {in.swer 
w  hMi<^-th  of  the 
iswer  <>-iven  ton 
Is  that  a  captain 
ioniijrSea  hears 
eoii  made. 
l)h'slie(l  the  fact 
I  tlie  decision  as 
nue  lier  luuitins' 

n  behalf  of  tlie 


generally  allowed 
tember  or  the  hist 

ou  in  Bering  Sea! 
ig'e  in  the  year 


I  of  August, 
unted  in  the  sea 


I  can  remember, 
e  25th  of  August* 
;  year  I  was  in  the 


THE    PATHFINDER. 


421 


().  That  was  tl»e  latest  time  you  were  ever  in  lieringSea — 
tlie  J'ltli  of  A  iij/ust.' 

\.  Yes;  toward  the  last  days  of  August  somewhere. 

This  witness  testified  that  it  took  fivi^  or  six  days  7.^  , 
tor  the  I'afhjii/dcr  to  reach  Uniniak  l*ass  after  slio  '^>2.'  ' 
hci^iin  her  lionu'warfl  vo3'ag'e  on  the  20th  (hiy  of  July. 
Takinji'  tiiese  five  or  six  days  from  the  1st  day  of 
Se|it(  inl)er,  wlien  tiie  witness  testified  that  \io  liad 
(iih-ulated  to  leave  the  sea  in  1889,  and  the  date 
of  the  terminatif>n  of  ihe  huntino-  operations  of  the 
Vdthjiniirr  is  fixed  at  Aujiiist  2h. 

'I'lie  Pathfinder  was  constructed  in  1879,  and  the  k^.  gjt,  g.  b. 
re<;istered  tonna<>"e  is  6(5.02.  'ifim  No, 

The  damage  claimed  is  for  the  value  of  854  seal    its!  p. 274. 
skins,  the  guns  seized,  and  the  charter  value  of  the 
Pdfli/imkr  from  the  28th  dav  of  July  until  the  close  „  _„„  ,.    . 
ot  tile  sealnig  season  m  nering  oea.      Ihe  value  of 
.")()   seal   skins,  taken  after   the   seizure,  should    be 
({('(hicted. 

There  is  no  evidence  in  the  record  to  justify  the 
elaim  for  "time  and  expense  of  owner,  82()(>,"  and 
no  testimonv  is  cited  from  the  record  in  the  Argu- 
mcnt  on  behalf  of  Great  Britain.  The  claim  for 
"legal  expenses,  S2r)0,"  rests  upon  the  same  basis  as 
the  claim  for  Belyec's  fees  in  all  the  cases. 

William  Munsie  testified  regarding  the  nature  of  k.,  139,  une 
liis  ag-reement  with  Belvea.  ^^- 

This  vessel  commenced  hunting  in  the  sea  the  1st 
day  of  July,  and  continued  without  interruption  until 
the  morning  of  the  29th  of  July,  when  she  had  taken 
So")  seal  skins,  making  her  averag-e  catch  during  that 
time  30^  skins  per  day. 

In  the  Argument  filed  on  behalf  of  Great  Britain, 
a  claim  is  made  for  2,024  skins  which  would  have 
Ixen  taken  during  the  balance  of  the  sealing  season, 
which  would  make,  extending  the  season  even  to  the 
2r)th  of  August,  an  average  catch  of  over  67  skins 
liei-  day. 


422  THE    PATHFINDER. 

Witliout  relying"  upon  tlie  fact  that  tlie  law  of  both 
groat  nations,  and  the  decisions  of  international  tri- 
bunals, clearly  establish  that  no  damages  can  be 
awarded  for  })rospective  catch  or  profits,  and  without 
reference  to  the  contingencies  which  exist  to  modify 
the  catch  of  seals,  this  calculation  clearly  reveals  the 
extortionate  nature  of  the  demands  of  these  claimants. 


tlie  lawof  lioth 
itenuitioiuil  tri- 
iimages  can  Ijc 
its,  and  witlioiu 
exist  to  luoditV 
arly  reveals  the 
these  claimants. 


THE  BLACK  DIAMOND  AND  THE  LILV. 

Claims  Nos.  lo  and  Ki. 

The  Blach    Diamond  entered   Beriny  Sea  Jnlv  <!,R.,  I'fiT.iines 
iSi^'.l.     fSlie  was  outfitted  with  ten  canoes.     Seidinj^-     "'     '  "" 
(ipcravions  were  commenced  on  the  lOtli  day  of  July. 
The  steamsliip    itirlKird  Bush,  in  the  service  of  tlie 
United  States,  seized  tlie  vessel  on  tlie   11th  day   ofR-,_i767.  line 
.(illy,  about  12  o'clock.     Seventy-six  seal  skins,  one    ih,'e3n;Ex! 
.itie,  and  the  s])earsof  the  Indians  were  taken  aljoard    i^.'^-.  •'•  ^  i 
the  cut'er,  landed  at  Sitka,  proceeded  ao-ainst  Ijy  the   i.-.. 
(ioveniment  of  the  United  States,  and  condemned. 

The  claim  is  one  of  partial  loss.     The  measure  of  Exhibits,  pp. 
il;iHiaf»'es  is  the  charte/  value  of  the  ship  from  the  1 1th    'ni;.),    une 
iliiv  of  July  to  the  2()th  or  2r)th  of  August,  measured    ^"- 
1)}'  the  rule  of  law  stated  iu  another  })art  of  this  Arj^u- 
mcnt,  and  the  value  of  the  skins  seized. 

The  value  of  the  skins  taken  after  the  seizure  should^-;  i"!?^'i'ne8 
l»(t  deducted  from  the  cnarter  vnlue. 

In  estimating'  tiie  charter  value  of  a  vessel  outfitted 
tor  a  sealing-  voyag'e  in  Bering  Sea,  consideration 
must  undoubtedly  he  given  to  the  fact  that  provisions 
were  on  board  to  sustain  the  crew  and  hunters  during 
the  period.     The  Black  Diamonv  was  proviiled  with 
Indian  hunters,  and  the  covSt  of  sustaining  an  Indiani;..  168,  line 
tor  one  month  is  >>').     There  v,  ere  20  Indians  aboard    niVe'li' ^^' 
and  the  captain  and  mate.     Provisions  were  landed R-.  i"8<),  line 
iit  Clayo(iuot,  where  Alexander  Frank  conducted  a 
trading  station.     The  vnlue  of  the  provisions  removed 
is  not  stated,  but  what  remained  were  utilized  forR.  i7si,iino 


;iii< 


>ther  trij). 


423 


424 


THE  BLACK  DIAMOND  AND  THE  LH.Y. 


15. 


K.^^1828,  Hue     ^lio  /.////  entered  lierino-  Sea,  July  25,  1881).     She 

was   seized    by   tlie    United    States   revenue    cutter 

Yt.,  1810,  Vine  It  i  chant  JIksIi  on  the  (Itli  day  of  Auj^'ust.     IMiree  linn- 

«9.  dred  and  tliirty-three  skins  and  the  liunting-  sjx'ars 

R.,  1817,  line  were  taken  bv  the  cutter.     The  crew  consisted  of  the 

captain,  mate,  3  wliite  men,  and  25  IntHans. 

The  case  of  the  chiimant  was  submitted  on  the 
nttidavit  of  ^lorris  Moss,  "/Ar  didi/  rcf/isfrtrd  owticr,^' 
and  John  Keilly,  her  captain. 

The  Lihj  was  ordered  to  proceed  to  Sitka.  Her 
captain  instead  sailed  for  \'ictoria,  arrivin<>-  at  that 
l)ort  on  the  1st  day  of  September,  188!).  There  is  no 
evidence  of  any  catch  of  seals  made  by  the  LUij  aitei 
her  seizure. 

This  claim  is  also  one  of  })artial  loss,  and  the  claim 
is  for  charter  value  of  the  vessel  from  the  <)th  day  of 
Aug'ust,  1889,  to  the  close  of  the  sealing  season,  Aii- 
fi-ust  20  to  August  25,  beside  the  value  of  333  seal 
skins  and  the  spears  of  the  Indians. 

The  claim  made  "for  illegal  V)oarding,  search,  and 
arrest  (»f  vessel,  82, ()<)(),"  and  the  similar  claim  made 
in  the  case  of  the  Black  Diamond,  can  not  be  allowed. 
The  allowance  of  any  damages  in  the  nature  of  puni- 
tive damages  agai.ist  a  (lovernrnent  acting  in  entire 
good  faith  has  been  discussed  at  length  in  another 
j)art  of  the  Argument.  The  items,  "Belyea's  bill, 
!ir*250,"  "personal  expenses  and  troulde  »)f  owner, 
S2()0,"  in  these  cases,  are  abs<dutely  uiisu})ported 
by  evidenct^  There  was  no  testimony  of  a  con- 
tingent contract,  even,  with  i\[r.  Belyea  regardiiisi: 
either  claim,  and  no  evidence  was  atlduced  tending  to 
show  that  the  owner  or  his  agent  gave  any  time  or 
expended  any  money  in  connection  with  either  claim, 

The  United  States  assert- that  Alexander  Frank,  a 
citizen  of  the  Unitcul  States  of  America,  and  a  resident 
of  the  city  of  San  b'ranciso,  was  the  owner  of  the 
Black  Diamond  and  the  LUif  at  the  time  of  their  seiz- 


THE    ULACK    DIAMOND    AND    THE    LILY. 


425 


:5,  188!).  Slie 
e venue  cutter 
.  Three  liuii- 
luntino-  spears 
ousisted  of  the 
lians. 

niitted  on  the 
istcrcd  owno;^' 

D  Sitka.  Her 
nviu<>-  at  that 
"^riiere  is  no 
:  the  Lily  after 


and  tlie  claim 
lie  ()tli  diiy  of 
ijj  season,  Aii- 
e  of  333  seal 

ig,  search,  and 
ar  claim  made 
lot  be  allowed, 
lature  of  jjuni- 
;!ting  in  entire 
til  in  another 
'Belyea's  bill, 
)le  of  owner, 
'  unsupported 
iiy  oi'  a  coii- 
'ea  re<!;ar(liuy 
•ed  tendiufi;-  to 
3  any  time  or 
1  either  claim, 
ider  Frank,  a 
and  a  resident 
owner  of  the 
of  their  seiz- 


uic,  and  that  no  damag-es  can  be  awarded  him  by  this 
Ilinh  Commission. 

These  (daims  are  presented  in  the  name  of  ^Morris 
)l(tss,  '7Ar  rcf/istcrrd  oirncr.^''  Morris  Moss  died  some 
rears  ago.  No  representative  of  his  estate  was  [)res- 
ent  at  Victoria  as  a  claimant  before  the  Commission. 
The  probate  proceedings  of  his  estate  at  \'ictoria'^j.f^'^' '^°^ 
I'ontain  no  reference  to  his  ownership  of  the  (daims. 

( 'ou".sel  for  the  United  States  requested  counsel  for  Jf.,  1806,  lino 
Ureat  Britain  to  state  whom  they  (dainied  to  be  the    "^*" 
owner  of  the  BUick  Difniiond,   and  the  counsel  for 
(ireat  Britain  rej)lied: 

So  far  as  we  are  concerned,  we  find  this  vessel  at  the  time 
of  lier  seizure  registered  in  the  name  of  Morris  Moss,  and 
we  (!hiim  for  iier  whoever  may  be  entitled  to  her;  we  are 
claiming  on  behalf  of  <lreat  liritnm,  a iid  ire  have  proof  that 
the  rctisel  was  ret/iNte)        -i  the  name  of  Morris  Mosx. 

The  affidavit  of  Minris  Moss,  made  as  a,  basis  tbrR.  ii^is,  line 
the  claim  of  the  Lili/,  an<l  his  affidavit  filed  in  con- 
nection with  the  claim  of  the  tilad:  D'laniottd  before  the 
Tril)unal  of  Arbitration  at  Paris,  contained  in  para- 
<iTa))h  1  of  each  affidavit  the  statement.  •'!  am  ^  Brit- 
ish subject  by  birth,  and  the  didjf  rfi/i-ffrcd  oictirr  of 
the  schooner  Lilff  (Black  Diamond)  ■  ''  the  port  of 
\  ietoria  aforesaid." 

.\lexan<ler  Frank  was  the  cmly  witness  <»\amined 
in  these  two  claims,  and  he  was  called   i>\    Kdegram u.^  191)3. 
from  San  Francisco,  where  he  resides,  and  examined 
on  the  last  day  of  the  session  at  Victoria. 

The  testimony  of  this  witness  is  brief,  and  a  careful 
rejidiu"'  thereof  in  connection  with  the  exhibits  relat- 
iiig  to  these  claims  will  satisfy  the  High  (commission- 
ers that  he  was  the  owner  of  these  vessels  at  the  time 
of  the  seizure,  and  the  person  the  (X)unsel  for  (Ireat 
Britain  had  in  mind  when  stating  "we  <daim  for  her 
wlioever  nniy  be  entitled  to  her;  we  are  (daiming  on 
lielialf  of  (ireat  Britain,  ami  we  have  proof  that  the 
Vessel  was  rcfjistcyrd  hi  the  name  of  MiUTis  Moss." 


42G 

Ex.  80,  G.  B. ; 
Exhibits, 
p.  I!t7.  Ex. 
111?,  G.  B.; 
Exhibits, 
p.  S76. 


Ex.  No.  10, 
U.  8.  tlaiiii 
No.  8.  p. 
211  of  Ex- 
hibits; Ex. 
No.lO,U.  S. 
claim  No. 
8  .  Ex- 
hibits. ]). 
2(17,  line  51. 


R.,  l!t»6,  liiKi 
43. 


THE    BLACK    DIAMOND    AND    THE    LILY. 

The  sliips'  ivf^isteivs  disclose  that  Morris  Moss  was 
tlie  reg'istered  owner.     No  otlier  evidence  was  oliered. 

The  Ijill  of  sale,  if  any  such  bill  of  sale  ever  exi.sted, 
is  not  in  evidence.  Tlie  register  is  only  prima  tacic 
evidence  of  ownersliip. 

Tlie  question  of  the  ownersliip  of  the  Blarl-  Dia- 
mond and  the  L'lli)  will  be  considered  at  the  same  time. 
The  facts  that  establish  Alexander  Frank's  ownershi]) 
of  one  e(pially  demonstrate  his  ownership  of  the  other, 

111  the  year  1887  Alexander  Frank  and  one  Jacob 
Giitman  Avere  partners  in  business  in  the  city  of  Vic- 
toria, ownino-  three  trading-  stations  on  the  west  coast 
of  \'ancoiiver  Island,  and  operating  three  schooners 
ill  the  sealing  business — the  Act  ice,  Alfred  Adams,  and 
the  Bhu'k  D'lnntond. 

Jacob  Gutman  died  about  the  1st  of  April,  1887, 
On  the  7th  of  November,  1888,  letters  of  administra- 
tion of  his  estate  were  issued  to  Alexander  Frank, 
who,  as  administrator,  made  and  tiled  affidavits  relat- 
ing to  the  administration  of  the  estate,  all  of  which 
"are  contained  in  Exhibit  No.  10,  United  States  claim 
No.  8,  ])ages  207  to  214,  hiclusive. 

The  I'nited  States  contend  that  on  cross-examina- 
tion Frank  was  shown  to  be  entirely  unworthy  of 
belief,  and  his  testimony  on  direct  examination  can 
have  no  weight  before  this  High  Commission. 

(J.  You  (lid  own  at  one  time  a  half  interest  in  the  Lily,  and 
you  did  own  at  one  time  a  half  interest  in  the  Black  Du' 
mond,  did  you  not? 

A.  I  did  not  own  them;  I  claimed  to  own  an  interest  in 
them. 

Q.  l!y  that  you  mean  that  you  were  not  the  registered 
owner? 

A.  I  claimed  to  own  an  ii  k^erest  in  them  to  proteiit  my 
interest  when  I  found  tiiat  the  lirm  was  insolvent.  There 
was  nobody  to  dispute  my  right  in  them. 

ii,  I  asked  you  if  they  were  partnership  property  when 
you  were  in  partnership  with  Jacob  (xutinan! 

A.  They  were  not. 

(J.  And  you  and  Gutman  never  jointly  owned  the  TAlji 
and  the  Black  Diamond  f 


LY. 

VIoiTis  Moss  was 
Biioe  was  offered, 
sale  ever  existed, 
i>nly  ])riina  fnoie 

tlie  Black  Dm- 
jit  the  same  time, 
rank's  (jwuersliip 
^liip  of  theotlier. 
c  and  one  Jacob 

the  city  of  Vic- 
)n  tlie  west  coast 
three  scliooners 
'fred  Adams^  and 

of  April,  1887, 
rs  of  adniinistra- 
lexander  Frank, 
\  affidavits  relat- 
ite,  all  of  which 
ted  States  claim 

I  cross-examina- 
ly  unworthy  ui 
lixaniination  can 
[iniission. 

!st  in  the  TAly,  and 
in  tlie  Black  Die 

own  an  interest  in 

lot  the  registered 

em  to  prote".t  my 
insolvent.    There 

ip  property  when 
an? 

y  owned  the  Lilji 


THE    BLACK    DIAMOND    AND    THE    LILY.  427 

A.  He  bought  them. 

(}.  Now,  answer  the  question,  did  you  or  did  you  not? 

A,  J  tell  you  we  never  owned  them  jointly.  It  was  after 
liis  death  when  I  claimed  them,  having  found  out  that  he 
WHS  lost,  to  protect  my  interest. 

The  name  of  the  Alfred  Adams  was  not  chano^ed^'-;^^!'^!*^, 
t(.  Ldij  nntd  the  'ioth  dav  ot  March,  ISSS. 


lit?. 


Phe  Argument  in  behalf  of  Great  Ikitain  admits 


rliat  Alexander  Frank  was  equally  interested  in  the 
venture  of  the  Alfred  Adams  at  the  time  of  her  seiz- 
ure in  1887,  and  the  evidence  upon  which  that  admis- 
sion  is  made  is  the  affidavit  of  Moritz  (lutman,  the^''|'''''>i*.«> 
sole  heir  of  Jac^ob  (hitman,  that  the  Alfred  Adams    ai." 
irns  owned  hij  the  .said  Jirm  of  Gutman  d'-  Frank. 
On  the  1st  dav  of  November,  1887,  Frank  madei-^ii'.V.*.^' 

•  1>     ''1''     llTlD 

.in  atlidavit  (found  at  ])age  210  of  exhibits,  line  50),    46.'  "' 

stating-: 

1.  That  for  two  years  and  upward  one  Jacob  Gutman 
had,  until  the  date  of  his  supposed  death,  hereinafter  men- 
tioned, been  in  partnership  with  me  in  a  trade  or  business 
(sarried  on  by  us  at  Johnson  street,  in  the  said  city  of  Vic- 
toria, trading  in  the  name  or  style  of  Gutman  &  Frank,  as 
merchants  and  Indian  traders. 

1'.  That  in  the  course  of  our  said  business  our  said  Jirm 
juissesscd  three  schooners, 

i.  That  in  the  month  of  February  in  the  present  year  the 
said  .Jacob  Gutman  sailed  from  the  port  of  Victoria,  British 
Columbia,  aforesaid,  in  one  of  our  said  schooners,  known  by 
the  name  of  the  Black  Diamond. 

He  also  made  an  affidavit  on  the  2l8t  of  Octo])er,  ExbibjK  ^p. 

1.S88,  in  which  this  statement  was  miule: 

That  the  said  Jacob  Gutman  was,  at  the  time  of  liis  de- 
cease, a  partner  with  me  in  a  business  carried  on  by  us  in  the 
;'ity  of  Victoria,  as  merchants  and  Indian  traders,  .and  that 
tie  estate  of  the  said  .Jacob  (iutnum  consists  of  one  half 
'Hterest  in  the  property  of  such  partnership.  That  the  account 
hereunto  annexed,  marked  A,  is  a  true  account  of  the  assets 
and  liabilities  of  the  estate  of  said  Jacob  Gutman,  deceased. 

The  first  two  items  in  the  schedule  marked  A  are^^Jj,''jf^'^3^; 
as  follows: 

The  deceased  is  entitled  to  one-half  interest  in  the  follow^ 


428 


THE    BLACK    DIAMOND    AND    THE    LILY. 


iug  properties:   British  schooner  JUach  Diamond,  British 
schooner  Lily. 

The  tostiinony  of  Frank,  vvliere  he  stated,  "I  told 
you  we  never  owned  tlieni  jointly;  it  was  after  his 
death  when  I  claimed  them,"  has  been  eited,  but  these 
aliidaA'its,  made  to  be  filed  in  the  records  t)f  the  })ro- 
bate  proceed in<:;s  of  the  estate  of -Tacob  Gutman,  and 
not  made  for  the  ])urj)ose  of  saving-  to  himself  claims 
aggi-egating  over  i^70,000,  clearly  establish  the  fact 
that  at  that  time,  uninfluenced  by  the  temptation  of 
jj^ain,  this  witness  swore  that  he  «)wned  one-half  of  the 
Black  Diamond  .and  one-half  of  the  LUif ;  for  he  says 
that  Jacob  Outman  was  in  ])artnership  with  him,  and 
that  the  estate  of  Jacob  Gutman  consisted  in  a  one-half 
interest  in  the  property  of  such  partnership.  He,  being 
the  only  other  ))artner,  consecjuently  <>wned  the  other 
half  of  these  schooners;  and  he  distinctly  says  in  the 
affidavit,  quoted  from  exhibits,  ])a<»e  210,  "That  in 
the  course  of  our  said  business  oar, said  firm  possessed 
three  schooners." 

Compare  these  affidavits  with  the  statement  cited 
from  the  Record:  "1  did  not  own  them;  1  claimed  to 
own  an  interest  in  them,"  and  the  fact  will  stand  out 
})rominently  that  this  witness  is  not  worthy  of  cre- 
dence, and  that  his  testimony  is  to  be  given  ?^o  weight. 

An  oj)portunity  was  afi'orded  the  witness  o.\  cross- 
examination  to  exyjlain  these  affidavits. 

R.,  1998,  line     Q.  At  the  time,  you  swore  you  owned  one-half  of  these 
61.  vessels? 

A.  I  did  not  swear  I  owned  one-half  of  them ;  I  swore  tliat 
he  owned  a  lialf.    I  claimed  the  other  half. 

Q.  And  at  the  same  time  you  were  making  that  affidavit 
you  knew  that  Jacob  (rutman  owned  all  of  them? 

A.  I  claimed  the  other  half  to  protect  my  interest;  to  get 
some  of  the  money  I  had  to  pay  out. 

Referring  to  the  affidavit  which  he  did  make,  and 
which  has  been  (juoted,  this  witness  is  shown  to  have 
])ositively  sworn  that  Jacob  Gutman  owned  one-half 
of  the  schooners  Black  Diamond  and  Lily,  and  that 


Diamond,  British 

i  stuted,  "1  told 
it  WHS  after  his 

cited,  but  tliese 
u'ds  of  the  1)10- 
)b  Giitnuiii,  and 
)  himself  claims 
•^tablisli  the  fact 
e  temptation  ol 
1  one-half  of  the 
Ui/;  for  he  says 
)  with  him,  and 
ted  in  a  one-half 
ihip.  He,  being 
)wned  the  other 
ctlv  savs  in  the 

210,  '"That  in 
(firm  possessed 

statement  cited 
m;  I  claimed  to 
it  will  stand  out 
worthy  of  cre- 
>iven  71  o  weight, 
itness  o.\  cross- 

one-hah"  of  these 

leni ;  I  swore  tliat 

ing  tliat  affidavit 
them? 
y  iuterest;  to  get 

did  make,  and 

1  shown  to  have 

owned  one-half 

Lily,  and  that 


THE  BLACK  DIAMOND  AND  THE  LILY.  429 

lie,  the  other  ])artner  in  the  firm  of  Gutman  & 
Fiiuik,  owned  the  other  half.  He  set  up  no  claim  in 
the  affidavits  that  he  was  entitled  to  one-half  the  ves- 
sels as  a  creditor,  and  in  fact  the  statement  of  liabilities 
shows  that  he  was  not  a  creditor. 
The  witness  was  further  cross-examined: 

Q,  Did  you  swear  to  the  court  that  Jacob  Gutman  owned  R..  H)9t),  line 
half  of  the  ship  when  you  knew  that  he  owned  it  all?  ^• 

A.  That  is  what  I  did. 

Q.  Did  you  do  that  to  deceive  the  court? 

A.  I  did  not. 

Q.  Did  you  tell  the  court  that  you  claimed  half  of  these 
sliips  as  a  creditor  or  as  an  owner? 

A.  I  did  not. 

Here  the  witness  himself  admits  makino-  a  false 
jitlidavit,  but  in  order  to  protect  his  interests  at  the 
present  time. 

One  Moritz  Gutman,  the  onl^-  heir  of  Jacol)  Gut- 
man,  swore  that  Gutman  &  Frank  owned  the  Alfred 
Adams.  He  either  sw«n'e  to  the  truth,  or  he  swiU'eto 
what  Alexander  Frank  had  told  him,  and  if  Frank 
(lid  not  own  the  half  interest  in  the  Alfred  Adams  he 
dct'rauded  this  heir,  and  is  defraudin<>-  him  to-day, 
because  the  claim  of  the  Alfred  Adams,  No.  8,  is  ])re- 
scuted  to  this  High  C'ommission  in  the  name  of  (iut- 
iiian  &.  Frank. 

When  asked  as  to  whether  the  statements  in  the 
alUdavits  were  true  or  not,  the  witness  replied  that  lie'^*-  *^*'"'  ^'"« 
supposed  his  lawyer  would  look  out  to  see  that  he 
swore  to  the  truth. 

He  was  asked  if  he  would  testify  that  Morris  Moss 
owned  the  claim  of  the  Black  Diamond  ag-ainst  the 
Government  of  the  United  States,  and  rej)lied,  '*Well, 
no;  I  will  not  swear  that,"  and  then  stated,  "Mv>rri8 
Moss  is  dead,  you  will  recollect."  He  was  asked  if  R  .litiJsMiiius 
the  estate  of  Morris  Moss  owned  the  claim  of  the  '  '  '" 
I  Hack  Diamond  against  the  United  States,  and  answ  ered, 
"  I  will  not  swear  to  it." 


430 


THE    BLACK    DIAMOND    AND    THE    LILY. 


Exhibits. 
21H,  lint! 


Exhibits, 
213. 


Kxliibit.s, 
211,  line 


Exhibits, 
213,  line 


MoritzCTUtnuiii,}i  brother  of  said  deceasedJacol)  Gut- 
man,  was,  upon  liis  attaining'  his  majority,  appointed 
administrator  in  tlie  ])lace  of  AI('xan<ler  Frank.  Jle 
was  tlie  onl\'  heir  t)f  the  deceased,  and  made  an 
affidavit  on  tlie  iltli  day  of  Noveml)er,  18S8,  in  whicli 
is  contained  tlii.s  statement: 

That  the  said  Jacob  Gutman,  jit  the  time  of  his  decease, 
was  a  partner  in  the  firm  of  Gutman  iK:  Frank,  of  the  city  of 
Victoria  aforesaid,  merchants  and  Indian  traders,  and  that 
the  only  estate,  property,  and  effects  of  the  said  Jacob  Gut- 
man in  the  Province  of  British  CoUimbia  ccmsists  of  a 
moiety,  ludf  part,  share  or  interest  in  assets  of  the  said  firm 
of  Gutman  &  Frank,  and  that  the  said  estate  of  the  said 
Jacob  Gutman,  deceased,  is  liable  to  a  moiety  of  the  liabili- 
ties of  the  said  partnership  firm  of  Gutman  «!v:  Frank;  that 
the  account  hereunto  annexed,  marked  "A,"  is  a  true  ac- 
count of  the  assets  and  liabilities  of  the  said  partnership 
firm  of  Gutman  vS:  Frank;  that  the  values  of  the  following 
personal  i>roperty,  schooner  lilacic  Diamond,  $1,500;  schooner 
Lily,$l,rm,  etc; 

And  in  tlie  same  affichivit  lie  swore: 

That  the  said  firm  of  (iutmau  cV:  Frank  liave  a  claim 
ajjainst  tlie  Government  of  the  (hiited  States  of  America 
for  the  ainoiint  of  $20,43;},  such  ciafm  being  for  the  seiziue 
of  «  certain  xchoonei-  laiown  Inj  the  name  of  the  Al/rc^f  Adams, 
and  oH-nvd  In/  the  sidd  Jinn  of  Gutman  d'  Franii,  and  of  cer- 
tain seal  skins  belonging  to  said  firm,  and  that  proceediiius 
have  been  commenced  and  are  now  being  prosecuted  for  tlie 
recovery  of  said  <laniages. 

The  schedule  marked  A,  referred  to  in  the  aflidavit 
of  Moritz  (Jutman,  states:  "The  followin;^'  is  a  list  of 
the  assets  of  the  firm  of  (Uitmaii  &  Frank,  and  in 
which  the  aliove-named  (h'ceased  owned  one-halt' 
interest:  Schooner  rUnrk  Didnioi/d,  Si, 500  ;  schocnicr 
Lili/,  81,000,"  etc.,  iiaminji-  other  property. 

This  affidavit  of  Moritz  (lUtnian  that  (jriitman  & 
Frank  owned  the  Alfred  Adams  is  false,  or  the  testi- 
nxoiiy  of  Alexander  Frank  that  he  never  owned  the 
.ship  jointly  with  elacob  (TUtman  is  false. 

Moritz  (TUtnian,  as  administrator,  made  an  affidavit 
on  the  9tli  day  of  November,  1888,  in  which  he  stated 


.Y. 


THE  BLACK  DIAMOND  AND  THE  LILY. 


431 


'UsedJacobGut- 
n-ity,  ai)j)()iiite(l 
ler  Frank,  lie 
,  and  inade  an 
,  ISSS,  in  whicli 


lie  of  his  dec-ease, 
iiiik,  of  the  city  of 
traders,  and  that 
0  said  Jacob  Gut- 
)ia  consists  of  a 
s  of  the  said  firm 
3State  of  the  said 
ety  of  the  liahili- 
vn  c^  I'rank;  tliat 
A,"  is  a  true  ac- 
said  partnership 
s  of  the  following 
,$1,500;  schooner 


Ilk  have  a  claim 
bates  of  America 
ig  for  the  seizure 
he  AI/re>tA{l(i)iis, 
'rail I,;  and  of  cei- 
tliat  proceedings 
rosecuted  for  tiie 

in  tlie  aflidavit 
vin;^-  is  a  list  of 
Frank,  and  in 
^vned  one-lialf 
500 ;  scliooncr 
jrty. 

lat  (jrutnian  & 
le,  or  the  testi- 
/er  owned  the 
<e. 

ide  an  afti(hivit 
vhicli  he  stated 


that  lie  had  received  an  offer  from  iVlexander  Frank 
•tor  the  ])nrchase  of  the  interest  of  said  Jacob  (lut- 
iiiaii,  deceased,  in  the  assets  of  the  said  firm  (except- 
iiiu  thereout  the  said  claim  of  820,433  against  tlie 
I  lilted  States  authorities),  the  consideration  offered 
by  the  said  Alexander  Frank  for  such  jiurchase  beinj^- 
the  assumjition  by  the  said  Alexander  Frank  of  all 
the  liabilities  of  the  said  firm."  And  in  the  same 
iirtidavit  he  stated  "that  such  account  shows  an  excess 
iif  tlie  liabilities  over  the  assets  to  the  amount  of 
sx;ii).57." 

Attached  to  this  aftitbivit  is  a  statement  of  the 
Msscts  of  said  estate,  inchulino-  the  Blacli  I)}(niioii(I  iuid 
ill II,  and  of  the  liabilities  tliereof  Subtractinj^-  the 
iisscts,  si7,323.21>,  from  the  liabilities,  818,222.86,  the 
l.iilance  is  J^SOD.oT. 

'I'his  affidavit  is  in  efiect  a  ])etition  to  the  Supreme 
Cdurt  of  iiritish  Cohimliia  in  jirobatc,  prayinii"  for 
leave  to  transfer  all  the  assets  of  the  estate  of  dacol) 
(iiitman,  including'  tln^  Itlacli  Diaiiioi/d  and  Lih/,  and 
wliicli  are  set  out  in  said  ]»etition  by  name,  to  Alex- 
ander Frank  in  consideration  of  his  assuming' all  the 
lial)ilities  of  the  deceased,  the  liabilities  exceedino" 
the  assets  by  the  sum  of  %^89!l. 57.  The  only  asset  to  _ 
Itc  excluded  from  the  transfer  was  the  claim  of  the  Vi.''  '  '"^ 
Mi'ri'd  AilduiH  ao-ainst  the  Government  of  the  United 
States. 

A  bill  of  sale  of  all  the  assets  of  Ja<'ob  (lutman, 
ilcceased  (exceptin**'  always  the  claim  of  the  Alfred 
Ailiinis  ajiainst  tlie  United  States),  conveyin<i'  in  these 
terms  :  "  The  said  Moritz  Gutman  doth  hereby  f>rant, 
:is,si()-n,  and  convey  mito  and  for  the  use  of  said  Alex- 
:iiider  Frank,  his  heirs,  executors,  administrators,  and 
iissi<>ns,  all  the  estate,  rif»ht,  title,  and  interest  of  him, 
ttie  said  Moritz  Gutman,  as  the  administrator  of  the 
estate  find  ett'ects  of  the  said  Jacob  Gutman  in  and 
to  all  and  siufj^ular  the  pro})erty  in  the  first  schedule 
hereto  contained  of  what  nature  soever,"  was  exe- 


432 


THE    HLACK   DIAMOND   AND   THE    LILY. 


Ex.,  p.  399,  exited  cm  the  8tli  of  November,  1888,  and  filed  with 

line  » J 

there<'ister-<>eiieral  fit  Victoria  on  tlie  9tliof  November, 
Exhii.its,  1).      (^nitained  in  that  bill  of  sale .....^ 

:!!»!»,     Hue  -     -  '^ 

2!t. 


E  X  hi  bits, 
l.l».L'lL',2i:i 


is  the  follovvinji'  state- 
ment: ''And  whereas  it  is  estimated  that  the  liabili- 
ties of  the  said  partnershi])  exceed  the  assets  thereof 
by  the  snm  of  SHJI!).")?." 

In  the  orij^inal  schedule  from  which  this  balance  (if 
>S890.r)7  was  obtained,  viz,  the  schedule  filed  in  tiie 
j)rol)ate  court,  the  lilack  Diattiond  and  the  IjHi/  are  by 
name  set  out  and  inventoried  at  the  sum  of  s  1,000  eacii, 
and  the  total  sum  of  88,000  is  recjuired  to  make  the 
assets  of  the  partnershi])  inventorv  at  the  sum  of 
si  7,323.29.  It  will  l)e  further  observed  that  the  liabil- 
ities, as  stated  in  that  schedule,  are  >^  1 8,222.86,  and  that 
the  balance  is  8899.57,  the  same  amounts  stated  as 
the  balance  and  the  total  liabilities  in  the  bill  of 
sale  from  Moritz  (iutman  to  Alexander  Frank,  dated 
November  8,  and  filed  the  !>th  day  of  November. 
A«'cordin<>ly,  when  the  ti'ansfer  was  made  from  ]\rontz 
(iutman  to  Alexander  Frank,  the  schooner  LVorA'  J)iit- 
iiiorxl  and  the  schooner  L'llji  were  necessarily  included, 
a.nd  Alexander  Frank  tlierefore  became,  on  the  8th  of 
November,  the  owner  of  the  schooner  Jl/ac/,-  D'uwioml 
and  the  owner  of  the  schooner  Lilij. 

This  is  the  only  bill  of  sale  in  evidence  of  a  trans- 
fer of  the  Lili/  and  lUac/,-  Diamond.  It  is  a  bill  of 
sale  to  be  recorded  with  the  register-<>-eneral,  and 
therefore  does  not  by  name  set  out  the  LUji  an<l  lilad 
I)iatnon(l,  but  the  amounts  show  conclusively'  that 
the  two  ships  were  inclnded  in  the  transfer. 

The  law  does  not  retpiire  a  ship  to  be  registered  in 
order  to  be  transferred.  The  registry  gives  c  n'tain 
privileges  to  a  ship ;  but  the  ownershij)  as  disclosed 
by  the  register  is  not  conclusive.  One  person  may 
own  a  ship  and  have  her  registered  in  the  name  of 
another.  At  the  time  of  this  transfer  Alexander  Frank 
was  an  American  citizen  and  could  not  obtain  the 
registry  of  the  two  vessels  in  his  name. 


jY. 


THE    IILACK    DIAMOND    AND    THE    LILY. 


438 


3,  and  filed  with 
ifliot"  November, 
tollovvino-  state- 
tliat  tlie  liahili- 
le  assets  tliereot 

1  this  balance  of 
iule  filed  in  the 
I  tbe  l/tly  are  l)v 
iiofsi^oOOeach, 
red  to  make  the 
at  tlie  snm  ot" 
Mltbattbelial)il- 
,2-_>-J.86,  and  that 
Kmnts  stated  as 
<  in  tbe  bill  of 
Br  Frank,  dated 
'  of"  November, 
ladef'rom  Moritz 
)( tner  Black  Dni- 
ssarily  included, 
le,  on  tbe  8tli  of 
■  JUac/i  Dianioiid 

ence  of"  a  trans- 
It  is  a  })ill  of 
ter-o-eneral,  and 
e  Lil//  and  Jilack 
mclusively  that 
iinsfer. 

be  registered  in 
ry  g-ives  c  ?rtain 
;lii})  as  disclosed 
lie  ])erson  may 
ill  the  name  of 
ilexander  Frank 
not  obtain  the 
le. 


.Morit/.  (lUtinan  testified  :  "  1  left  Victoria  s()nie  time  "•- '■^'^"'  ''"<* 
ill  1S8S,  and  Alexander  Frank  continued  tbe  business, 
;iiiil  of  course  k('|)t  the  books;"  and  tbat  lie  was  absent 
four  years  from  X'ictoria.  Frank  did  n(»t  desire,  tbere- 
tiiic,  to  leave  tbe  sbi[>s  ref;istered  in  tbe  name  of  tbe 
fstiite  of  Jacob  (Jutmaii,  because  Moritz  (lutman,  tbe 
mliiiinistrator,  was  leaving-  tbe  city  for  a  period  of 
four  years.  Frank  accordinoK-  made  use  (»f  tbe  name 
lit  .Morris  ^loss  for  tbe  jmrpose  of  baviiig  tbe  sbip 
rctiistered. 

Tbe  sbi])s  were  registered  in  tbe  name  of  M(»rris 
Muss  on  tbe  lOtb  day  of  November,  is,s8.  Tliat 
.Miiritz  (hitman  bad  no  title  to  tbe  A/7//  and  /Ihn/: 
IliiiiiKn/d  at  tbat  rime  is  sbown  by  tbe  bill  of  sale 
il;it('(l  November  8,  18S,s,  wbicb  transferred  tliese 
visscds  to  Alexander  Frank.  Tbe  onl\'  evidence  of 
the  ownersbi])  of  M(»rris  Moss  is  tbe  eutl•^•  (»n  tbe 
register.  Tliis  entry  is  not  sufiicieiit  to  outweigh  tbe 
1)111  of  sale,  introduced  in  e\  idence,  from  .Moritz  filiit- 
iiiiiii  to  Alexander  Frank;  and  at  the  time  of  its  c(»ii- 
vtyance  tbe  })robate  court  had  ne\-ei'autborzed  ^loritz 
(iiitman  to  make  su(di  conveyance. 

On  tbe  14tb  day  of  November,  1888,  tbe  transfer 
li;i\  ing  l)een  made  on  the  8th  day  of  November,  and 
the  bill  of  sale  recorded  on  tbe  Htb  day  of  November, 
Moritz  (lUtman  filed  in  the  Suijreme  Court  of  Ib'itisliK.,  1859,  line 
•  idumbia,  in  ])robate,  his  affidavit,  dated  No\eniber 
;'.  1S88:  a  bearing"  was  had  aiul  tbe  fi)llowing  (»rder 
entered: 

Upon  hearing  an  application  on  belialt'  of  Moritz  Gntnian,  Uv  1839,  line 
till'  lubninistrator  of  tlie  estate  of  Jacob  (iutiiian,  dec  used,     "*^- 
1111(1  upon  reading  the  anidavit  of  the  said  JNIoritz  (rutnian, 
tiled  herein  on  the  14tli  day  of  November,  1 888, 1  do  order  that 
tlic  said  Moritz  Gntiuan,  the  said  administrator,  be  at  lib- 
t'lty  to  sell,  convey,  assign,  and  otherwise  assure  to  Alex- 
ander Frank,  of  the  city  of  Victoria,  in  the  Province  of 
British  Columbia,  all  the  real  and  personal  estate  and  effects 
lit' tlie  above-named  .labob  Gutman,  deceased,  of  the  Trovince 
of  liritish  Columbia  (excepting  thereout  the  claim  of  the  J. ^/mi 
Admns  against  the  Government  of  the  United  States). 
B  S 28 


M.rtf,,.t\_'  I  . 


434 


THE  HLACK  DIAMOND  AND  THE  LILY. 


That  ill  consideration  of  the  couveyaiice,  assijjiiineiit,  or 
other  assuraiH^e  to  be  iiia<le  under  this  order,  the  said  Alex- 
ander Franlv  do  assume  and  pay  all  the  d«^bts  and  liabilities 
of  the  said  firm  of  Gutman  iS:  Fr  luk.  wliich  debts  and  lia- 
bibties  are  particularly  set  out  in  an  exhibit  marked  A,  an- 
iiexed  to  the  said  ailidavit  of  the  said  Morit/  Gutman,  and 
therein  ajjpear  to  amount  to  the  sum  of  $18,'J2L'.8(»,  and  tliiit 
the  said  Alexander  Frank  do  enter  into  security  to  the  amount 
of  $  18,222.80  to  indemnify  the  estate  and  effects  of  the  said 
Jacob  Gutman,  deceased,  from  the  payment  of  any  of  the 
debts  and  liabilities  of  the  said  firm,  sucdi  security  to  be  to 
the  satisfaction  of  and  approved  by  the  registrar  of  this 
court. 

TIa<l  ^forris  Moss  pinvliastMl  {mm  lHack  DldDioiid  i\i\(\ 
Jjilif,  lie  would  not  liavocousci't;  '  to  Morilz  (Jiitiiitni 
tniiistV'rriu<>'  the  titli'  to  Alexander  Frank  on  the  Stii 
day  of  Xoveiiiber,  j\Ior('ovi'r,  it  would  luive  been  it 
siinplc  ]n'oeediirL'  to  jiave  filed  willi  the  jirobateeoiirt 
a  [letition  jiray  in<i,'  for  leave  to  sell  the  vessels  to  Morris 
Mi>ss;  but  no  such  petition  ever  was  filed,  and  no  such 
sale  ever  authorized. 

The  only  conclusion  is  that  ^Nforris  ^[oss's  name  was 

used  simiily  for  the  jiiu'poseof  effecting-  a  transfer  on 

■^•^g^^"*^' ^'"''tlie  re<iister.     Morris  Moss  was  en<i-a<>ed  in  the  l)usi- 

K.,  1229,  line  ness  of  represeiitiuo-  purchasers  of  seal  skins  at  tlie 

K.'^i23i  liuel"*^'*  '*^  Victoria,  and  was  also  eng-aji-ed  in  the  business 

26.  of  outfittiiij>'  vessels  as  aj^-ent  for  other  jiarties. 

K.,  I5i34,  line  The  Ilio'li  (Jomiiiissioners  are  advised  that  it  is  not 
an  uncommon  practice  at  ^  ictoria  for  ships,  entirely  or 
})artly  owned  by  American  citizens,  to  be  registered  in 
the  name  of  subjects  of  Great  liritain.  Charles  Spring 
swi;re  in  the  affichivits  filed  at  Paris  that  he  was  the  sole 
owner  of  the  Oinrard  and  the  Farouritc,  and  the  testi- 
mony in  this  Record  discloses  that  Alexander  McLean, 
an  American  citizen,  owned  one-half  of  each  of  tho"e 
vessels.  William  Munsie  made  no  reference  in  the 
affidavit  filed  at  Paris  to  the  interest  of  Bechtel  in  his 
shi}),  althoug-h  it  is  now  admitted  that  Bechtel  was 
equally  interested  in  the  venture  of  the  Pathfinder  in 
the  years  1881)  and  1890.     Theodore  Lubbe  testified 


LY. 


THE    BLACK    DIAMOND    AND     THE    LILY. 


435 


ce,  assiifiimeiit,  or 
ler,  the  said  Alex- 
L^bts  aiKl  liabilities 
licli  debts  and  iiii- 
bit  marked  A,  an- 
oritz  Gntman,  and 
18,'J2L'.8(;,  and  that 
iirity  to  the  amount 
ett'ecta  of  the  said 
lent  of  any  of  the 
!h  security  to  be  to 
5  registrar  of  this 

a(]>  ])l(n)io)Hl and 
I  .Morilz  (liitinau 
'nink  on  tlu'  Stli 
itild  liuve  been  a 
:lie  j)r(>l)ate  court 
vessels  to  ^lorris 
ileil,  and  no  such 

^[oss's  name  was 
iny  a  transfer  on 
|>-e(l  in  the  husi- 
seal  skins  at  tlie 
il  in  the  business 
sr  parties, 
led  that  it  is  not 

ips,  entirely  or 
)  be  registered  in 

Charles  Spring 
it  he  was  the  sole 
'7f',  and  the  testi- 
xander  McLean, 
ot'each  of  tho'^e 
reference  in  the 
i»f  liechtel  in  his 
lat  Bechtel  was 
the  Pathfinder  in 

Lubbe  testified 


si 


that  althou<;h  he  was  an  American  citizen,  he  was  at 
(iiic  time  a  part  owner  of  the  Farouritc  and  the  ()n- 
iranl;  an<l  Morit/i  Ciutman  swore  that  Alexander 
IVaiik  was  the  half  owner  of  the  J/fnd  Ailanis, 
altliou<j;h  the  shi|»  was  re<iistered  in  the  name  of 
Jacob  (intman.  Patrick  Ilickey  testified  that  he 
was  half  owner  of  the  Caroloid  when  she  was  reu'is- 
tcrcd  in  the  name  of  Donald  ITnpdiart. 

Uearinji'  ujjon  the  ownership  of  Alexander  Frank,  H.,  i78o,  line 
Captain  Thomas,  in  char<i;'e  of  the  Jtluck  Didttiond  cmi  ^'^' 
this  voyaj^e,  testified  that  he  took  provisions  off  at 
Alexander  Frank's  tradinji  station  upon  his  return 
tidui  lierin<4'  Sea;  and  this  witness  further  testified 
that  Alexander  Frank  was  aboard  the  lUdvh  hitDi/oitd 
atthe  time  she  left  Victoria  for  her  vovaj>e  to  lierinti' 
S(ii  in  the  year  1885),  and  mad(?  the  trip  to  the  west 
(i)ast  of  Vancouver  Island. 

The  lilack  D'koiioik/  made  a  trip  to  P'rank's  fishiuff-R.,  i7Si,  liue 
>tation   on   Queen   Charlottes   Islands    after    leavinj^-    ^^• 
IVring-  Sea  in  the  year  ISSD,  and  was  there  loaded 
with  a  car<4'0  belonging-  to  Frank. 

Althouuh  t\\e  A/f'ird  Adams  was  re<>istered  in  the^'"'*^  its, 

i-     I  1      r-'    ..  \1  1  1^         1111  207,liiie32. 

name   of   flacol)   diitman,   Alexander  rraiuv    held   aExhii.its, 

iii<>i't<>a<i'e.     This    mort<»'a<'e   was    not    dischari'-ed    of    JJ"-  ^o,  G. 
'^    ^  .  .  .  I'v    claim 

wrurd  at  the  time  of  the  death  of  Jacol)  (Jutman,  but    No.  8;  reg- 
stood  against  the  boat  wdiich  was  known  as  the  Lilij    [^ili^ana'^^vl 

iiring  the  time  of  the  proceedings  had  in  the  estate    197. 

f  Jacob  Gutman. 
An  ins[)ection  of  a  statement  of  the  liabilities  of  said 

('(•cased  Jacob  Gutman  discloses  that  the  mortgage 
to  .Vlexander  Frank  was  not  scheduled  among  the 
ilehts  of  the  estate,  showing  that  the  mortgage  merely  Exhibits,  p. 
iv])resented  Frank's  half  interest  as  an  owner,  and  was    ^^^' 
lint  considered  a  debt  of  Jacob  Gutman,  deceased. 

Collector  ]\Iilne,  in  re})ortino'  as  to  the  owners  of  k.,  I8i9,iine8 
ussels  sealing  from  the  port  of  Victoria,  stated  that    '**^'^' 

A.  Frank  was  the  owner  of  Black  Dkunond,^'  and  "A. 
Frank  was  owner  of  Lily" 


4^  THE  BLACK  DIAMOND  AND  THE  LILY. 

This  table,  prepared  by  Collector  Millie,  shows  oiiit^ 
face  that  it  was  a  table  ])re])a red  with  reference  tetlit 
^•>1S19>  ^'"^owiiei'ship  of  vessels,  and  not  the  rei>'istered  owiiei'sl 
l)ecaiise  in  oue  instance  it  is  stated  that  the  owners  ol 
the  Aurora  were  not  known.  Of  course  the  vessel 
must  have  been  reii'istered  in  the  name  of  some  ])er- 
son:  and  ayaiii  in  the  table  it  is  stated  that  Indinufl 
owned  certain  vessels  and  certain  connuercial  coinpiH 
nies  owned  othei's,  althou<i'h  the  re<>'ister  would  contaiii 
no  reference  to  Indians  or  iuiincor])orated  com])aniesJ 

The  United  States  contend  that  the  testiniom-j 
adduced  establishes  Ijeyoiid  controversy  that  Alexan- 
der Frank  was  the  owner  of  the  Il/acf,-  Diumoml  and 
tile  luili/  at  the  time  of  their  seizure  in  1889,  and  that 
no  damagen  can  V)e  awarded  the  owner  of  these  vesselsB 


A'. 


liie,  shows  on  its 
ret'erenco  t(»tli( 
istei-ed  owiK'rsj 
It  the  ownei-fs  oi 
urse  the  vesHt 
le  of  some  pcr- 
e<l  th;it  Indiiiii 
niieivial  coui));!- 
would  contnii] 
itcd  ('<)in])aiiit's, 
tho  testimony 
s}'  tliat  Alexan- 
■k  ]>ku)i<)H(l  iiml 
1  l.SSJ),  nndtluit 
of  tliese  vessels! 

l'" 
s 

I 


the  minnie. 
Claim  No.  17. 

The  Minnie  entered  Berin<^'  Sea  -lune  "27,  18S!), 
riiiTvin^'  eig-ht  canoes,  two  boats,  one  of  wliich  would 
Ik-  a  stern  boat,  and  a  crew  of  16  Indians  and  o  white 
men,  inchidinii'  captain  and  mate.  She  continuecl  her 
liiintin<^  from  the  27th  of  dune  until  the  l.'jtli  dav  of 
Inly,  at  4.oO  o'clock  in  the  afternoon,  when  she  was 
seized  })v  tlie  United  iStates  revenue  cutter  Riclidnl 
/i/rs//,  connnanded  by  ('a})tain  Shejjard.  The  board- 
niu'  officer  directed  the  remo\al  of  418  skins,  (»ne 
iir(n-cli-loadin}.i'  shotj^'un,  one  nuiz/le-loading- sliot<Ji"un, 
:ind  eleven  spears  to  the  Wichitrd  h'/isli. 

The  schooner  was  ordered  t(»  proceed  to  Sitka. 
Tlie  instructions  were  not  obeyed,  and  "that  nijiht 
made  some  new  spears  ai/rl  next  i}ion/h/(/  coiiniinici'd 
liiiufiuf/  (IS  f//(>H(/lt  iiotli'nif)  IkkI  Ixippciu'd ;  we  captui"e(l  ")() 
M'uls  on  that  day  and  !K)  on  the  next.  Kej)t  on  hunt- 
iiiL:'  until  the  17th  of  Auu'ust,  when,  haviu"- ")(>«)  seals 
I'll  board,  1  left  for  the  south.  After  passing' throuj^'h 
(  iiimak  Pass  1  told  the  prize  crew  I  should  steer  f(»r 
\  ictoi'ia.  lie  replietl,  'I  alwavs  thoujiht  so.'  The 
hidians  t«dd  me  that  if  the  Tnited  States  sailor  at- 
ti'iuuted  to  take  the  vessel  to  Sitka  the\'  would  throw 


R.,  1437,  line 
13. 

R.,  U36,  line 
67. 


R.,  1450,  line 
40. 


R.,  1450,  line 
HO. 

Atlidiivit  of 
\i<tor  .la- 
cobs  :<;  the 
owner  of 
tlie  Minnie, 
iiLiiile  at 
Victoria, 
I'd  dav  of 
Seiit.,  1889. 
R.,  1151, 
line  50. 


ijjted  t( 


nil  overhoan 


MU 


1  t(»-d{ 


I.      We  arrived  in  \'ictoria  last 
tl 


eveniiiLf, 


\\  at  noon  the  pri/<'  crew  came  asliore  ai 


id 


ii'iiorted  at  the  American  consulate 


he  owner, 


\ 


ict(»r 


Jacol 


V(l 


\  aii'e,  and  testified: 


)sen,  was   captain  on 


tl 


le 


\>.  l)i<l  yon  inako  as  many  new  spears  as  the  old  ones  tbatR-,  1445,  line 
a.)  been  taken  away  troiii  you?  ^^■ 

A.  No;  1  didn't  make  as  many,  but  1  made  as  many  as 


needed. 


437 


438 


THL    MINNIE. 


!  5 


'•'i 
i 


R.,  1437, 
37. 


R.,  1437, 
43. 


Q.  You  made  some  of  those  si)ears  the  iiijjht  of  the  (lay  yoiijll  A. 
were  seized,  did  you  not?  '     |  jriglit 

A.  Yes,  tiie  very  same  night,  and  the  rest  iii  the  moniiiii;/ 

Q.  And  the  xc.rt  morniiuj  you  commenced  Healing  as  thnnijk 
nothlmj  had  happened:-'  |  lilu'i 

A.   That  is  ivhat  ice  did. 

Theodore  ^lag'iieseii,  iiiateot"  tlie  vessel  at  the  tinu 
of  til e  seizure,  on  direct  exainiiiatiou,  testified: 

lino     Q.  After  being  ordered  oxit  had  you  any  conversation  with 
the  master  of  your  vessel  as  to  what  you  would  do? 

A.  Yes;  we  tt'.lked  the  matter  over,  and  we  came  to  tiie 
conclusion  that  we  wasn't  going  out  of  Bering  iSea  unless  we 
were  towed  out. 

line      Tins  witness  says:    "That  in   the  evening'  of"  tliel 
day  of  the  seizure,  the  vessi'l  ])r(»eee<led  to  tlie  nortli- 
\vard,"and  then  corrects  the  statement  "to  the  nort]i-| 
east;"  and  makes  a  further  statement: 


R.,  1438, 
5. 


I 


R.,  1438, 
3. 


)l;i( 


^5o!''"'^'  ^'""t'ontrarv,  sa\s  tlint  the  dav  after  the  seizure  the  luinter; 


R..  1441, 
2!). 


line 


R.,  1443, 
12. 


Hue     Q.  On  the  day  following,  where  did  you  ])roceed? 

A.  Went  up  to  the  northward  ;  it  di'opped  calm,  and  tliey  | 
lowered  the  next  morning,  and  they  went  out  with  Mioir| 
guns.     Captain  Jacobsen  was  fixing  up  sitears  for  them  wiiile 
they  were  out.     The  Indians  wasn't  out  very  long.    Tlieyj 
came  back  again ;   they  couldn't  find  any  seals,  and  they  j 
wasn't  much  use  to  the  shotguns. 

lie  then  states  that  after  tlie\-  wen^  ordered  out 
they  steered  up  to  tlie  noi-theast,  ])r(»hal)ly  20  miles, 
lowered  the  next  day,  an<l  g'ot  a  few  seals,  "I  caHt 
rememher  how  niiiny,  jtrobahh'  IS  or  "20." 

Magiiesen  also  states  that  itri<»r  to  the  date  of  tlic  j 
lineseiznre  the  hunters  iikkK'  the  hirgest  catch  of  the  vu\- ' 

the  mimher  at  74.     dacohsen.  on  the 


took  oO  seals  and  DO  on  the  next  dav. 

Ca|>tain  .lac(»l)s('n  stated  that  he  had  no  loo-  of  tlic 
voyage  to  |)ro(hice,  and,  notwithstand'ug'  tlie  tact  that 
he  secured  better  results  after  the  warning-  than  before,  % 
emh'avoi's  to  establish  that  he  left  the  "best  sealing' 
g-n  Hinds." 

lino     Q,  And  in  the  meantime  (after  the  seizure  and  before  leav- 
ing the  sea)  you  sealed  .' 


THE    MINNIE. 


439 


i'litol  the  (lay  yogH  A.  Yes;  iip  to  a  few  days  before  we  came  out  we  sealed 

,,  •  ,  ,,  tot  along. 

^t  in  the  inoniiiin;.  ii    ,,       ,  ,  ,  .  ,  ,. 

'■  ^'   nut  lie  says  tlie  seals  were  scattering-  and  tew  up  R.,  1444,  line 

iiicre. 

On  cross-exaniination  tlie  witness  testified: 


scdiiiiff  (IS  thwuiii 


ss(d  at  tlie  tiiiK 
testitied: 

'onversatioii  withl 

odld  do? 

we  came  to  tliej 

iii«"  Sea  unless  wot 

?vening'  of  tlie 

(I  to  the  nortli- 

"to  the  iiortli- 

)roceed  ? 
d  Ciilin,  and  tliey 
i  out  with  Mieirj 
rs  for  them  while  ( 
ery  long.    Tliey 
seals,  and  they| 

e  «H-(]eivd  oiiti 
al)ly  20  niiU's, 
■<eals,  "I  can't 
20." 

U'  (httc  of  tlio 
N'h  of  the  vov- 
'(thscii.  on  the 
ire  the  hunters 

no  loo-  of  tlio 

X  the  f;ict  that 

\X  th;in  l)ef(>re, 

"bent  sealiiin' 

nd  before  leav- 


Q.  And  the  next  morning  you  commenced  sealing  as  though 
!Httliing  had  happened? 

\.  That  is  what  we  did, 

i}.  How  many  seals  did  you  take  the  day  after  you  were 
ji'ized  ? 

A.  Oh,  1  don't  remember  that  for  certain. 

i}.  About  how  many? 

A.  I  suppose  40  or  50;  maybe  not  50;  between  30  and  50, 
iiiyhow. 

His  attention  was  tlien  called  to  the  affidavit  })rinted 
ill  the  American  Keprint  of  the  Paris  Proceedin<»s, 
vol.  ,"),  ]>.  3G(),  and  he  wns  asked  if  he  made  an  affi- 
liivit  containing  the  statement,  "I  then  concluded  I 
ivmild  not  g-o  to  Sitka,  but  would  continue  my  voy- 
iijc.  That  night  we  made  some  new  spears,  and  next 
morning  commenced  hunting  as  flio/tt/li  )iotliiN(j  had 
liilipoK'd.  We  captured  oO  seals  that  <(a//,  and  9(>  on 
tlir  next.''''     1  Fe  answered  that  he  supposed  he  did  make  R.,  1445,  line 

lit.  and  that  he  supposed  it  was  correct. 

\    This  affidavit  bears  date  September  2,  1S8!),  iind^-'^^"- 
«as  prepared  immediately  after  his  return  from  Bering 
Sea. 

The  testimony  of  (/'a])tain  Jacobsen,  bearing  upon 
tile  change  of  jiosition  of  his  shij)  afttn*  the  seizure, 
!i:is  little  weight  when  the  original  afhdavit  made  by 
liini  on  the  2d  day  of  Se[)teml»er,  1SS9,  contains  no 
mention  of  the  fact  that  he  had  abandoned  the  seal- 
iiiLi'  grounds  or  changed  his  position,  but  on  the  eon- ^•' ^'^^^• 
'I'lMv  states  that  the  next  morning  he  commenced  to 
lnih<-  "as  though  nothing  had  haj)pened." 

The  affidavit  liled  by  this  claimant  at  Paris  coii- 
tniiis  this  statement: 

An  hour  or  so  after  the  Riinh  went  away  the  man  left  in^  °J-'*'P-.2^» 
'liiirge  showed  me  his  written  instructions  Iroin  Captain  Reprint 
J^lu'ltard,  of  the  liivhunl  UuhIi,    As  nearly  as  1  can  remem-    Proceed- 


mm 


440 


THE    MINNIK. 


!¥ 


r'i 

Vi 


ingsof  Tri-  ber  the  (lirt'ctioiis,  lie  was  to  deliver  the  Minnir  to  the  liiitcd; 

bunal  of  f^|.,,j.g^  iinthoi'lties  at  Sitka,  and  place  her  captain,  iiiyscli,; 

tion      at^"*^  mate  under  arrest.     /  <i1  oner  made  iqi  nn/  niinil  ti>  staiit 

Paris.  where  I  irn.s  and  nttch  irlud  senln  I  could.     Next  moriiiiif;-  1| 

made  new  spears  for  the  Indians  and  sent  them  out  sealinji-.j 
1  remained  in  the  sea  up  ':o  the  Kith  of  Aujiust  rollowing,! 
and  in  th.it  time  got  48G  seals  and  8  sea  otters.  I  did  iiot| 
see  an.;,  thing-  of  the  Ilmh  after  the  15th  of  July. 

Had  ('aj)ti»iii  -lacohscn  at  tliat  time  conceived  die 
idea  ot"  luakiiiu'  clMim  on  the  ground  that  lie  t'liaiiiivd 
his  position,  rct'crcnce  wonhl  ha\e  l)e('n  made  t<»  the 
fact  in  tliat  afili(hivit:  and  in  ('onnnt'ntin<i-  on  tlie  iZ/rA- 
ard  Uiish  not  ha\  in^- a])])('ared  after  the  15th  ot'didy, 
it  wouhl  he  reasonahle  to  sni)j)(»se  that  he  woidd  liave 
said  that  he  went  oti'  to  an  uno<'cn|)ied  and  unusedl 
portion  of  Herinji'  tSea,  and  therefore  avoided  the  ll'irh- 
(()■((  liH.sli,  and  not  have  stated  "I  at  once  made  up  my 
mind  to  sf<i//  /rlirn'  I  tras  <iitd  catch  icliat  .scal.s  I  could!' 

A  comparison  of  tiie  catcli  made  bv  the  Mhitdv 
between  the  :27th  day  of  June,  when  siie  entered  the  J 
sea,  and  tlie  15tli  day  (tf  duly,  the  day  u})on  wlii('h| 
she  was  wai'ne(l,  with  the  catcli  made  between  the| 
l.")tli  (h>y  of  duly  and  the  17tli  (hiy  of  August,  tlic !' 
(hiy  she  h'ft  the  s(-a,  shows  that  tlie  hunters  took  ni(»re  ' 
st'fds  perday  after  slie  hd't  thise"best  seahiiii'  "irouiuls" :: 
than  she  did  wlien  slie  was  occuiiyin*:' them. 

Captain  dacohsen  testilit^d  that  when  he  entered  » 
IV'rinji'  Sea  he  had  loO  skins  aboard  th(^  ship,  and  | 
there  were  418  sim/amI  \\\  the  cutter  on  the  l.")tli  of  i' 
-JuK',  makinij'  the  catcli  between  the  *J7th  of  Jtiiu'  ; 
and  the  l;)tli  (d'  ,Iuly,  2(!(S,  which,  beiuji'  dixided  h\  " 
the  mmiber  of  days  occupied  in  makinji'  tlie  catch,  c 
viz,  IS,  o•i^•es  a  daily  catch  of  nearly  1."). 

After  the   s(d/;Ure,  and   U])  to  the  time  of  leaviiiu  :■ 
E.,U46,  Ihie^]^,  ^j.,,    j|,^,  Mhiuic  to<dc  48S  skills,  and  hunted  thirty-  i  rlai 


E.,  Mil.  lino 
24. 


'Kit 

■liiini 

!ii;id( 

Tl 

(,). 
A. 

the  1 

not,  s 

B 

tical 

ild  (1 

(,). 
A. 

two  I 

T 

iliite 

mad 

W 

oil 

inte 

M'll, 
\vll( 

war 
tcl'll 
ot'    1 

l 

Vic 

I'ca? 
yea 
i-ni 

ii,ue 


12 


X\\ 


ro  da\s,  making-  her  averau'c  catch  over  15  seals  ii 


n'AX 


AssuHMlly,  when  the  effect  cd"  leaving-  "the  best 
sealing'  <;r()unds"  is  to   produce  better  results   thim  %  \\\\ 
when  occupying'  these  grounds,  the  claimants  would 


die 

Au: 

val 
hu. 


THE    MINNIE. 


441 


did  nor 


itirU)  Hie  riiitcdj 
captain,  iiiy.si'irJ 
mi/  mind  io  sf(n/\ 
Next  iiioi'iiiiio'  'iP 
;liein  out  sciUiii 
iifi'ii-st  lollowiiiir. 
tcrs. 
luly. 

conceived  tlic 
uit  he  cliMiiyed 
u  luade  to  the 
1^-  on  tlie  Jlich- 
'  I5tli  otMiilyJ 
he  would  have  I 
d   juid  unused  I 
oi(U'd  tlie  llicli-i 
;e  made  up  luv 
t  .ver//.s  /  could."  i 
)y  tlie  Miiiiiif, 
die  entered  the: 
\\  U})on  which  ; 
e  between  the  ■ 
of  Au^'ust,  tlie  : 
Iters  took  iiiiire 
aliii;^'  j^rouuds" 
them. 

en  he  entered 
tli(^  sliij),  and 
Ml  the  lAth  of 
27th  of  fliuie 
ino-  divided  hy 
uno'  the  catch, 
If)." 

me  of  lea\iii,u' 
limited  thirtv- 
iver  15  seals  ii  -m 

ino-  "the  hcst 
r  results  than 
ainumts  would 


;ii(it  apjiear  to  be  in  a  ])osition   to  base  a  (daiin  for 
Uiiiua^es  u}>oii  the  fact  that  a  (dianj^e  of  }>ositi(»n  was 
made. 
The  captain  testified: 

(i).  For  what  season  did  you  outfit  tlic  acliooiier? 

A.  I  intended  to  stay  to  the  middle  of  September;  from 
ilie  10th  to  the  middle,  in  Bering  Sea.  I  stayed  there  the 
yt'ur  before  in  a  small  schooner,  and  in  this  schooner  I  was 
iiot  scared  of  the  wind  and  weather. 

lint  on  cross-exainimition  he  testified  tliat  he  prac- 
tically abandoned  sealino-  in  the  year  1SS8,  on  the 
Id  of  September;   and  testifyino-  further: 

(}.  You  left  the  sea  on  the  2.'5th  of  August,  l.SOO? 
A.  L'.'id  1  think;  we  quit  sealing  on  the -J;{d;  we  were  some 
two  or  three  days  getting  out. 

The  only  explanation  he  makes  for  leavino-  on  that 
iliite  is  that  he  thonii-ht  he  had  seals  enough  and  liad 
iiiiide  money  emuijih. 

P)earino'  upon  the  extortionate  claim  for  833,187, 
iin  acccumt  of  damau'es  suffered  bv  reason  of  the 
iurcrruption  of  the  voyage,  the  testimony  of  Jacob- 
Mii,  who  owned  the  M'nti/ic  in  the  year  1H91,  and 
ulio  was,  on  the  15tli  day  of  duly,  in  the  year  iSJjl, 
\v;inie(l  from  the  l>eriiio'  Sea  in  accordance  with  the 
terms  of  the  modus  vivendi  of  that  year,  is  worthy 
lit'  note. 

['he  British  (Jovernment  svut  commissioners  to 
\  ictoria  to  j)a\'  the  sealers  for  the  losses  incurred  by 
I'ejison  of  beinji'  deprixcd  of  huntina'  in  the  sea  in  the 
year  1S!)1,  and  this  witness  recei\ed  from  the  (Jov- 
iiiiment  of  (ireat  Britain  the  sum  of  ^8,000  fordani- 
iiucs  suffered  b\'  ftro  sriiooiicis. 

Xo  testimony  is  found  in  the  record  to  liase  the 
claim  for  "time  and  expense  of  owner,  S'iOO,"  njion. 

The  Government  of  the  United  States  is  liable  for 
tlic  chai'ter  value  of  the  Minnie  from  the  17ti!  day  of 
.\noust  to  the  20th  or  25th  of  August,  and  for  the 
vidiu'  of  418  seal  skins,  2  <vm»>^>  and  tiie  spears  of  the 
Indians. 


K.,  1440,  line 
66. 


R.,  1447,  line 
53. 


R.,  1448,  line 
61. 


Chart  ^o. 
6 ,  V  o  1 .  3 
A  niericnii 
K  e  ])  r  i  n  t, 
givinij;ilate 
of  warning 
in  1891. 


1^. 


R.,  1447.  line 
10. 


■HHI 


m 


the  triumph. 

Claim  No.  18. 

The  only  witness  wlio  liad  a  personal  knowledjie 
of  the  occurrences  in  Berin<»'  Sea  relatinf>-  to  the  warn- 
ing' of  tlie  Triuitq)/!  was  Capt.  Daniel  ^IcLean.  His 
io.  '  "'*  affidavit,  made  on  the  8th  day  of  August,  1889,  at 
Victoria,  was  ref.d  int«^  the  Record. 

He  states  that  he  entered  leering-  Sea  (Ui  the  4tli 
day  of  Jul}',  188!);  was  boarded  by  an  officer  of  the 
United  States  revenue  cutter  Biclnud  Rush  on  the 
11th  day  of  July,  who  told  him  that  if  ho  should 
again  board  the  vessel  and  find  sealskins  he  would 
seize  and  confiscate  the  vessel  and  catch.  On  account 
of  this  warning  the  affiaut  states  that  he  terminated 
his  voyage  and  returned  to  the  ])ort  of  Victoria. 

No  ])ro))erty  was  taken  l)y  the  cutter,  and  her  only 
claim,  beside  the  usual  iteuis  for  "illegal  boarding, 
legal  expenses,  and  expense  of  owner,"  is  for  prospec- 
tive catch. 

E.  C.  liaker,  oue  of  the  owners  of  the  Triinnph, 
testified  on  direct  examination  regarding  the  instruc- 
tions given  to  Captain  McLean  relative  to  the  durn- 
tion  of  the  voyage: 

R-.  ^1420,  line     Q,  .Y)k\  you  give  liim  any  instructions  as  to  tlie  time  that 
he  should  stay  in  the  sea  ? 

A.  Well,  of  courHe  T  am  not  really  jwsitive  ns  to  iustriic- 
tions.  1  was  simply  one  of  the  partners  raanaging  the  attairs 
of  the  schooner,  and  a  good  deal,  necessarily,  would  be  left 
to  j\ro'>ean's  discreti(tn,  because  it  was  he  that  got  me  to  jio 
into  tliat  venture.  Xatinutlhi  T  irould  he  (jnuled  hi/  his  report 
as  to  the  eircumstanees  n-hen  he  ir  ts  to  return,  lint  it  was  dis- 
tinctly understood  between  him  and  myself  that  he  w^iild 
442 


44. 


THE    TRIUMPH. 


443 


lal  kiiowlcdjie 
!"•  to  tlie  wjirii- 
]\[('Leaii.  His 
ig-ust,  188fl,  at 

iea  on  the  4tli 
1  officer  of  tlie 
J  Bush  on  the 
"  if  he  should 
kins  he  would 
1.  On  account 
he  terminnted 
'  Victoria. 
',  and  her  oidy 
isi'al  boardino-, 
is  for  prospec- 

'  the  Triifiiijih, 
i<i'  the  instruc- 
■e  to  the  (lura- 

;o  the  time  that 

>:e  ns  to  instriic- 
aging  tlieattairs 
Y,  would  be  loft 
lat  got  me  to  jio 
led  1/1/  his  rcjxni 
I»nt  it  wasdis- 
f  tiiat  he  wf^tild 


icinain  there  to  the  very  last  of  the  season  that  he  could 
iiitch  seals,  so  as  to  ascertain,  if  i)o.ssible,  how  long  that  sea- 
<im  really  <hd  and  could  last. 

Q.  Was  there  any  understanding  at  all  to  that  effect? 

A.  Yes;  he  was  to  remain  there  initil  late  in  September. 

(}.  That  was  fully  uiulerstood? 

A.  Fully  understood  between  him  and  me.  In  fact  he 
wanted  to  know  something  about  what  became  of  the  seals 
alter  they  left  the  sea,  including  the  Pribilof  Islands.  He 
ii((iit('d  to  (JO  on  a  little  t'oyat/c  of  diseorerff  to  a  certain  extent, 
ml  trove  them  and  prohobh/  do  some  sealing  at  the  same  time. 

(}.  It  was  mentioned  between  you,  or  understood,  that  he 
loiihl  stay  there  until  pretty  late  in  Sejitendier? 

A.  Oh,  yes.  The  previous  year  he  had  come  back  [to 
:  I  Victoria]  on  the  10th  of  September,  and  he  had  everything 
on  board  that  would  eimble  him  to  stay  there  until  the  end 
lit'  the  year,  for  the  matter  of  that. 

Upon  this  testimony  in  the  Argninent  for   Great 

liritain  a    claim  is  made  for  a  season  extending-  to 

October  1. 

If  the  testimony  of  an  owner,  who  was  never  in 

^    Bering  Sea,  to  the  etfect  that  he  had  instrncted  his 

captain,  who  was  a  man  of  long  experience  in  the 

'f    >(';iling  bnsiness,  to  stay  in  the  .sea  as  late  as  possible, 

to  ontweigh  the  positive  statement  of  that  ca})tain 

t;  ftliiit  the  sealing  season  terminated  toward  the  last  of 

Augnst,  the  opinions  of  all  thinking  minds  regarding 

tile  weijiht  t(»  be  <>i\en  testimony  of  this  luitnre  will 


ic  disreii'arded 


l|ur  <uMt-^(iiuv-ii.     Again,  if  the  statement  of  a  witness 
^■interested  in  the  results,  to  the  etfect  that  he  instructed 


Im 


liis  captain  to  goon  "a  little  voyage  of  discovery"  to 
rnice,  if  jiossible,  the  seals  when  they  left  the  Pribilof 
Ishnids  to  ])roceed  on  their  southward  journey,  and 
"|ir<»l)ablv  do  some  sealing  at  the  same  time,"  is  to 
lie  taken  as  a  basis  of  establishing  the  duration  of  the 
M;ilin<>'  voNaye  in  Heriny  Sea,  amiinst  the  testimon\' 
Ml  clearly  establishing  the  termination  of  the  sealing 
Miison  between  the  "iOth  an<l  25th  of  August,  there 
unuld  ha\"e  been  little  need  of  examining  to  such 
:;reat  lenuth  so  main'  witnesses  concerning'  the  u'en- 
iTiil  subject  of  the  ttrdinary  period  during  which  seal- 


444 


K.,  1821, 
45. 


i 


E.,   702, 
30. 


E.,  1452, 
40. 

E.,  1431, 
24. 


THE    TRIUMPH. 

in^'    (tpcriitions    could    he   continiU'd    witli    profit  in 
Ik'riu^'  Scji. 

Ciipt.  Daniel  ^[('I^t*an,  to  wlioni  was  intrii.stod  tlu 
(h'tenuiiiatiou  of  tlie  duration  of  tlu*  v(>ya<>'0,  acconl- 
in<i'  to  the  testimony  of  Uaker  liimself,  wlio  said,  "[ 
would  he  uuided  hv  his  report  as  to  the  circunistaiiccs 
when  he  was  to  return;"  when  (piestioned  as  to  how 
liiielouo'  hunting'  could  he  lontinued,  stated  in  an  ailida- 
vit,  made  in  1S;)2 : 

Bering'  Sea  Inintinft'  season:  I  usually  enter  the  Beriiif; 
Sea  during  the  tore  part  of  July  and  leave  the  last  of  August 
The  sea  becomes  too  rouj>li  to  nuikeit  proHtablc  to  liuntseiil 
after  August,  and  it  is  the  |)vacti(;e  for  nearly  all  vessels^ 
engaged  in  hunting  seal  to  leave  about  that  time.  A  t'ewl 
sometimes  remain  later  for  the  ])uri»ose  of  trying  to  raid  tlie. 
Islands,  but  tlicre  are  so  few  days  that  the  sea  is  smooth | 
enough  to  hunt  after  September  1  that  it  does  not  pay  to| 
remain  any  longer. 

Captain  ^IcLean  was  master  <d'  the  Tyiuwpli  on  a! 
voyaji'e  in  188S,  and  the  detailed  catch  of  the  vessel, 

line  which  was  testified  to  \)\  liaker,  shows  that  the  last; 
day  the  'D-iiiiiiph  hunted  in  that  year  was  the  20tli  of| 
Auji'ust,  and  that  the  boats  were  n(»t  hnvered  between 
that  day  and  the  14th  of  Au«>ust. 

This  information,  taken  directh'  from  the  books  of 
Captain  Mcd.ean,  to«i'ether  with  his  statement  that  the 
seaHno'  season  closes  alxuit   the  last  of  Au<i"ust,  (Mtii-' 
clusively  shows  that  the  Ininfiiif/  voyaji'e  of  the  Tri- 
nntjili  would    ha\'e   terminated  at  the  usual  time,  and; 
that   in  determininji'  her  charter  \alue,  no  reason  is 
found  in  the  evidence  for  extendin<;' the  ])eriod  during- 
which  she  wt»uld  ha\'e  hunted  lanond  the  ordinary 
limit,  fixed  as  between  the  20th  and  2/)th  of  iVuji'Mst.  ? 
The  manaii'inji'  (»wner  of  the  Triiniiplt  had  contracted  J 

lino  to   sell   to    II.    Liebes  c^  Co.,   id'   San    Francisco,  tlio 
cat(di  <d"  the  vessel   for  the  year   I.SS9,  at  ^(,.2;")  for 

^"'^eacdi  skin  delivered,  and  sold  the  catch  made  on  the 
voxaji'e  to  lieriu"-  Kea  at  that  figure. 

If  there  were  anv  conditicuis  attached  to  the  con- 


Itraci 
pcrf 
li;iv< 
tlie 

h 
Ti'n 
lie  } 
<kin 

'I 

llilS( 

mid 
tiin( 

i;rit 

'I 

;i^'e 
(■re\ 
lYh 
Her 
\:\ki 

r 

(•;it( 
wit 
>cr 

tnr 

fur 

IV  f 

r 

I'CC 
lit 

est 

Ai 

VCf 

we 
St( 

wl 


R 


THE    TRIUMPH. 


445 


witi 


I    pntlu  ill 


s  ill  trusted  tli( 
oyji^i'c,  accord- 
f",  \vli(»  said.  "  r 
t  circuinstaiiccs 
oiK'd  as  to  \\i)\\ 
ed  in  an  alHda- 

Miter  the  Beriiiff 
lu;  last  of  Ausust. 
tablt'  to  hunt  seal  I 
learly  till  vessflsl 
;liat  time.  A  (owl 
trying-  to  raid  tliel 
the  sea  is  smooth  | 
t  does  not  pay  toj 

Triiitupli  on  a 
li  of  the  vessel, 
vs  tliat  the  last'^ 
was  the  20tli  of' 
)wered  between^ 


an  the  bo(>ks  of; 
teiiieiit  tlmt  tliefS 
)i  Auji-ust,  eon- - 
aii'e  of  tlie  '/'//- 
usual  time,  and  ; 
e,  no  reason  is 
e  ])eriod  (hirini:' 
id  the  ordinary  -J 
!r)th  of  Anu'ust. 
'  hadciuitraeteil 
Franeisco,  the 
9,  at  86.2;")  for 
di  made  on  the 

led  to  the  con- 


I. 


iraet  of  11.  Liel)es  &  (Jo.,  tliey  were  in  a  ])osition  to 
jicrfonn  their  part  of  tlie  eontraet,  and  al)s(dut(dy  did 
linve  a  vessel  at  Sand  Point  to  receive  tlie  cattdi  ofK- I43i,  line 
the  Trii())i)th  made  on  the  voyaji'e  to  Berinji'  Sea. 

in  the  (daim  for  tlu;  |)ros|)eetive  catch  of  the 
Tr'nunpli,  which  the  United  States  maintains  can  not 
lie  allowed  in  any  event,  the  \alne  ])lace(l  on  eacdi 
•>kin  is  S]  1, 

'riuM'e  is  no  testimony  in  the  Hecord  ni^ai  which  to 
l)as(»  the  items,  "le^al  and  other  exjx'Uses,  >^250," 
iind  "time  and  expense  of  owner,  ^200;''  and  no  tes- 
timony is  (Mted  in  the  Ari>ument  on  Ixduilf  of  Great 
liritain. 

'Vhe  statement  of  tlui  money  expended  for  the  voy- 
age of  the  Ty'inutpli  and  of  the  advances  made  to  the 
(few  is  (lualified  l)v  the  testimonv,  showin<>'  that  theK-,  i^3i,  line 
Ti'niiiipli  hunted  alon^'  the   coast  on  her  voyaj^^'e  to     " 
licrinji"  Sea  and  returned  to  A'ictoria  the  322  seal  skins 
taken. 

'Die  hinders  had  not  heen  siittled  with  for  thisK-.i^-"- 
I'.itch,  and  tlie  amount  finally  paid  is  not  separated 
with  reference  to  whether  the  money  was  paid  for 
Mi'vices  jieiformed  on  the  voyafje  to  Px'rin^'  Sea  or 
tor  services  in  Bering-  Sea  and  upon  the  return  voy-^..  1427,  line 
M^e.  Certainly  the  amount  paid  to  hunters  was  ])aid 
tor  skins  taken  and  delivered  to  the  <iwners,  and  has  no 
I'cference  to  the  claim  i)reseiited  to  this  Commission. 

The  owners  of  the  TriKntjth  would  l)e  entitled  to 
iccover  her  charter  value  for  the  period  l)etweeu  the 
1 1  th  day  of  July  and  the  20th  or  2r)th  of  August, 
estimated  on  the  basis  stated  in  the  jiortion  of  this 
Ai'j;ument  relatin<>'  to  the  measure  of  damages  for  the 
Vessels  warned  out  of  Bering  Sea  and  whose  voyages 
were  therefore  iiiterruj)ted,  if  a  citizen  of  the  United 
States  had  not  been  interested  in  the  voyage. 

The  United  States  contends  that  Daniel  ^[cLean, 
who   was  the  owner  of  tweiit>'-two  shares,  or  one- 


R..  1417,  line 
70. 


446 


THE  TKirMrii, 


tliird,  of   the    'I'tiKiiipli  ciui  hv  awjirdcd  no  sum  tnr 

clniuaj>es. 

Ex.No.i2,r.       ^[cLeaii  beciiiiie  a  naturalized  citizen  ot"  tlie  L^iited 
.s.     claim  ,,  ,    .  .  ,        -   1       1  !•  /  V        1 

No.  18;  Ex-htates  ot  America  on  tlie  oth  day  ot  October,  1S(S2. 

209!^*"'  ^'"      Without  ol)tainin«>'  tlie  consent  (if  tlie  Tnited  States, 

and  the  Tnited   States   not  havinji'  consented   to  liis 

tlirowinj^- off  alle<i'iance  to  their  (Jovernment,  McLeiui. 

R.,  1947,  line  on  tlie  Idtli  (lay  of  October,  IScSd,  made  applicaliiui 
for  and  received  ])apers  (leclariii<^"  him  to  he  a  natiiial- 
ized  suhject  of  (Jreat  Britain. 

Km  1821,  lino  On  the  7th  (hiy  of  September,  1«*I2,  he  made  an 
afKdavit  that  he  was  a  naturalized  American  citizen. 

The  laws  of  the  United  States,  the  decision  of  its 
courts,  and  the  established  law  of  nations  beariiiji' 
ii])on  the  citizenshi])  of  ^IcLean,  and  his  rij^lit  to 
recover  damages  for  an  act  comniitted  in  ^  iolatioii  of 
the  sovereign  rio-htsof  the  Go  vTiinieiit  of  the  United 
States  and  the  niuiiicii)al  law  of  the  country  to  which 
it  is  claimed  he  owed  allegiance,  have  been  heretofore 
discussed  at  leiig'th  and  the  positi(jn  of  the  United 
States  defined. 


40. 


50. 


hTI 
';iss 
lai 

iiiK 
>li(-' 

ivhit 
U 
!;iiu 

At 

iillict 

iiKlii: 

r;m)£ 
IVOlll 

llhic 
iitlie 
fit  to 
the 
1)11  r  1 
lleav: 


I'll  no  sum  tor 


I  of  tlie  riiitwl 
( )('tol)('r,  1 S82. 
riiited  Stiites, 
iisentc'd  fu  his 
lIH'llt,  McLe;ui, 
Ic  application 
N>  be  }i  Hjitunil- 

2,  he  Mijide  an 
erican  citizen, 
decision  of  its 
ation.s  l»ejirin<>- 
1   his    rioht  to 
in  violation  of 
f  of  tlie  United 
nntrv  to  which 
>een  hei'etofoi'c  ^ 
of  the  United  : 
I 


the  ariel. 
Claim  No.  19. 

The  Ariel,  a  vessel  of  90.11;")  re;:istere<l  t(»ns,  entered  ''-^J-iso,  line 
litrino-  Sea  on  the  Tith  day  of  duly  throu<ih  Uniniaki{.,i't6i, lines 
I'iiss,  proceeded  to  the  south  md  west  of  the  Prihilot  j^'^^j','^^')  j.^^ 
Ishuids;   hunted   until   6  (Md.ick   of  the   morninji'  of    -'^-     ' . 
hily  30,  havinji'  secured   at  that  time  34^!  sealskins.    s(i]-jr,'. 
She  carrieil  (!  boats,  1    canoe  for   India"   hunters,  a 
■iinoe  to  be  used  as  a  stern  b(»at,  and  a  crew  of  22 
whites,  2  Indians,  and  a  cook. 

UiuU'r  diite  the  30th  dav'  of  July  the  book  of  Uaj)- 
:;iin  Hutdvnani   contains  this  entry,  made  at  the  time: 

At  6  a.  m.  American  cutter  Rush  came  alongside  and  sertR.,  1462,  line 
illirers  on  board  to  examine  and  search  the  vessel;  made    ^-■ 
iiKluiries  as  to  the  nuniber  of  crew  on  board;  wliat  time  we 

line  into  Bering  Sea;  an<l  thenuniber  of  sealskins  on  board. 
They  also  tohi  us  if  caught  with  fresh  skins  on  board  we 
ivmild  be  seized.  Also  reported  having  seized  schooners 
ItldcJi  Diamond,  Pathfinder,  and  jl/m/o'e,  and  having  searched 
iitlier  scliooners  in  the  sea.  .1^  9  a.  m.  all  hoatu  out,  and 
II turned  irith  120  .skinn.  Badly  scared  through  the  day,  as 
the  cutter  appeared  at  one  time  to  be  returning  to  us,  and 
iiiir  boats  had  got  far  away,  contrary  to  their  orders  wheu 
luaving  the  vessel. 

This  entry  discloses  that  the  Arid  lowered  her  boats 
within  three  hours  after  she  was  warned,  and,  as  tes- 
tified bv  Cai)tain  Bucknam,  the  boats  were  lowered^-' i^t^^' ^'"e 

l"  1  /•  I'll"  1  •  "j  ^t  SCO. 

L'vcrv  day  therealter  u})  to  an<l  nicludnig  the  niornnig 
of  the  18th  of  August,  when  the  weather  would 
|iermit. 

From  the  time  of  the  warnino-  by  the  United  States 
11' \enue -cutter,  up    to    and    including   the    17th    of 

447 


44S 


THE    AKIEL. 


Aiif^tist,  tlu'  lumtcrs  of  tlic  Ar/il  liiid  ttikcii  4S5  soils, 
iiii  iivcrjiiic  of  2()  |i('r  (l;iy.  Fi'om  tlic  I'Jtli  <liiy  of 
.July  until  tlu'  3()tli,  ii  ju'viod  of  ci^litceii  djiys,  'd-Ul 
scjils  liiul  heeii  tJikiMi  by  the  liuntcrs,  iiii  avora^e  of 
liJ  seals  j)t'r  day. 

Captain  liucknaiii,  one  of  tlic  owners  of  the  xcssd 
and  a  witness  in  liis  own  helialf,  was  asked  on  cruss- 
exaniination: 

K.,  IKW,  line     (}.   I>i(]  i/dh  not  seal  vrerii  tbiji  lu'tn-ecn  the  30th  <hni  of  'hilji 
^'  and  tlw  20'th  tlai/ of  Aii(/i(si.' 

A.   /  Ixlierf  ire  ditl, 

(}.  Kvory  tiiiio  you  could  lower  your  boats  you  had  tliem 
out,  (lid  you  not? 

A.  I  do  not  believe  I  eoiild  say  that. 

Q.  Could  you  not  ?    Then  I  will  refresh  your  recollection. 
Did  you  testily  here  once  b<'f'ore  that  everyday  you  c<m]tl[ 
lower  your  boats  you  lid  lower  them?  j 

A.  i  don't  know  if  1  did.  I  don't  reiueniber  al)out  it.  1; 
can  only  say  what  we  were  doing  by  looking  tiirough  tliis; 
diary;  tiiis  is  correct.  i 

Q.  Vou  had  that  diary  when  you  were  on  the  stand  before,  [ 
did  you  not  ?  j 

A.  Well,  any  statement  I  make  from  tliis  diary  is  correct. 

().    Will  f/oii  aiisircr  the  question.^    Did  you  lower  your  boats 
every  day  that  you  could  f 

A.   /  titiuh  H'v  did. 

Q,  And  your  claim  now  is  that  you  went  oft"  the  sealing 
grounds,  is  it? 

A.  That  is  our  claim;  from  where  I  knew  it  was  good  seal- 
ing grounds. 

The  owners  <^f  this  vessel,  notwithstaiidin<i-  the  num- 
ber of  seals  taken  after  the  warninj^-  o'iven  by  the  cut- 
ter aA''  rau'ed  'li\  ]ter  day,  while  the  number  taken 
befoie  averao'ed  but  11)  per  day;  and  notwithstaiid- 
iii<4-  the  testimony  <»f  the  captain  that  lie  lowered  his  v 
boats  every  day  that  they  could  be  lowered,  mikI  . 
hunte<l  for  seals  lietween  the  8()th  of  July  and  the 
(hiy  that  he  left  the  sea,  ask  from  the  Government 
of  the  United  rftates  damag-es  which  they  chiimed  to ; 
have  suffered  by  reason  of  having-  partially  obeyed 
■44.   "'  '""the  warninj^-  and  left  the  locality  which  the  captain, 


\vb( 

seal 

'\ 

An 

of  1 
\\\n\ 

II 

,  clea 
111!  t 

'I 

lILi'C 

Au| 
the 
tha 
ihi_\ 
r(»'l 
ho} 
1110 

r 

;i  r 
the 

Au 


th^ 

of 

wl 

lot 

lo. 

h.H 

of 
tio 
te 
th 

Ai 

th 


I 


I  ken  4S5  sj-nls, 

ic    iL'th    (iiiy  (.t 

tfcii  (lavs,  34(i 

an   avcraiic  nt' 

I's  of  the  \('ss('l 
iskcd  on  ci'uss- 

■Wtli  (hiji  of  .hilji 
Its  you  had  tlicm 


vour  recolliMtioii.j 
ry  (lay  you  could 

tber  about  it.    I| 
ing  tlirougli  tliis 

tlie  stand  before. 

i  diary  i.s  correct, 
I  lower  your  boats 


ut  off  the  sealing 
it  was  good  seal- 

udino- the  niuu- 
veii  by  tlio  cut- 
uuinber  takou 
notw'itlistand-  ^ 
le  lo\vere(l  liis  ^i 
!  lowered,  and 
:"  July  and  the 
e  Governinont 
liey  claimed  to 
irtially  obeyed 
cli  the  captain, 


THE    ARIEL.  449 

w  lio  had  never  ])een  in  Bering-  Sea,  "///tvr  wa.s  j^ood 
M-alin^'  jirouiuls." 

The  testimony  al)undantly  sliows  the  fact  that  th(^ 
Ariel  <*ontiinuMl  her  seahnji' voyaji'e  until  the  iStli  da\' 
ul"  Aiiiiiist  as  tlioniih  no  waiMiiny  had  been  ^iNcn. 
ii|)on  wliich  (hiy  th(^  captain  entered  in  liis  book: 

Have  now  decided  to  leave  the  sea  at  once,  as  it  is  (|uiteu.,  noi,  Uno 
clear  that  many  seizures  will  be  made  this  season;  perhaps    51. 
nil  the  ve.ssels  that  remain  in  the  sea. 

'i'iie  liiited  States  deny  all  liability  for  any  dam- 
Miics  alle;^('d  to  ha\-e  accrued  prior  to  the  bStli  day  of 
Anjiiist,  and  coniidently  rely  upon  the  t<'stimony  of 
rli(^  claimants  themselves  to  estal)lish  their  position 
that  no  heed  was  yiven  the  warninj'-  until  tlu^  iS'th 
day  of  Au<4'ust;  and  no  dama<ies  were  sustained  j)rior 
to  that  <lay,  for  the  captain  says  that  ho  lowered  his 
boats  everv  sealino'  dav  un  to  and  includin*'-  the  K->  1 169,  line 
iiiorniny  oi'  the  iStli. 

The  memorandum  or  lo_<i'  produced  did  not  contain 
a  record  of  the  l<  titude  and  lon<^itude  of  tlu;  ship  from  u.,  1470,  Huc 
the  1st  day  until  the  21st  day  of  Auj^ust  ^^■ 

Q.  And  from  the  1st  day  of  August  until  the  21st  day  of 
August  you  have  not  entered  your  latitude  and  longitude? 
A.  I  think  not. 

41ie  only  testimony  bearirifi;'  upon  the  position  of 
the  ship  after  the  warning"  is  that  from  the  position 
o\'  latitude  5H°  36',  loufritude   172"^  01 V,  occupied  R.,  1463,  line 
when  warned,  the  vessel  moved  to  latitude  55°  05', 
lonoitude  169°  55'  on  the  l.st  dav  of  Aujjust.     The  R.,  1463,  lire 
loo-  states  that  a  huntinji"  boat  with  its  hunters  was 
lost  upon  that  day.     From  that  time  until  the  entry 
of  August  19,  no  entry  is  made  showinf^'  the  posi-u.,  i464,  line 
tion  occui)ied  by  the  vessel.     However,  the  captain    *'^- 
testified  that  he  from  that  position  held  generally  iu 
the  direcition  of  Bog-oslof  Volcano  until  the  5tli  of 
August,  at  wdiich  time  an  entry  was  made  in  the  log  R.,  1463,  line 
that  the  vessel  was  making  in  the  direction  of  Bogos-    ^^" 

B  8 2!) 


4r)<  I 


THK    ARIEL 


K.,  14W.  lot.  .\tT(M'  August  "i  tlu'vc  is  ii(»  ('(turst'  rccoivlcd  in 
riit-  iin-iiKd-Miiduiii:  l)Ut  rlic  entries  sliow  that  the  \(*s- 
mi\  was  sfii.lhiji-  (•((Ustaiitly,  and  make  rei"eren<'e  fnuii 
linie  t<»  tiiiJie  to  the  seiiarch  after  tlie  Imntiiiji'  Ixtat, 
«iwtvrin<:-  tliat  tlie  ve^^nel  iniist  liave  reinaiued  in  the 
■vt'-iuity  ot*  the  posinDii  <»c(Mi|)ie(l  Auyii.st  l,the(lav 
n^Mb  whicli  the  boat  wai^  lost. 

yto  the  lotli  of  Auji'UHt  the  seals  appear  to  have 
Imku  so  ))]entiful  that  rlie  ea])tain  nia(h^  this  note  in 
In'f*  ]i»»»ok:  "Many  seals  seen  <lnrin;.>'  the  day  from  tlu' 
vesHeL*' 

liie  course  from  5;")'  Of)',  KIJJ^  of)'  southeast  toward 
]8o«r*>si<'»f,  \vhi(di  was  the  (-(Uirse  of  the  vessel  from 
uke  otli  of  Au<iust  to  the  iMtli,  wlien  the  decision  was 
made  tr..  leave  th^  sea,  and  dnrin<>'  whicdi  time  the 
])oats  w-i-i'e  lowered  every  day  that  huntin*'' was  pos- 

AiBum(ntonf;il)l(.   jj^  »lii-ectlv  o\er  the  "Tound  covered  by('ai)taiii 
♦Tieat Urit- Mnier,  who  is  citevi  as  sustainin<^- tlie  position  ot  tl-e 
i""' 5n '''^' <^'l*diuants   as  to  tlie   location   of    the    "best  seahn/ 
ftLiint-ao.  uTounds       (UrectlA'    "ver  the  <>"r<niiid  covered  bv  die 
Matji  E  I'll  in  18Hi),  (daimed  in  the  Ar<>uinent  on  be- 
half of       eat  Britain  as  having-  occupied  the  "best 
sealing-  frrounds:"  directly  over  the  ground  hunted 
by  the  Tiirrrso  in  188(),  which  vessel,  it  is  stated  in 
the  Arg-uuieiit  on  behalf  of  Great  Britain,  occupie(l 
the  "best  seaHno-  o-nmnds;"  and  is  directly  over  that 
portion  of  the  Bering  Sea  wlii(di  the  other  claimants 

ici.,p.60,iiue.,^s.^j.|  ^(^  1^^  ^i,g  j^j.gj,  habitually  resorted  to  by  all 

sealers  and  well  known  ot  all  men  engaged  m  the 
business. 

Locate  on  a  (diart  the  position  occu})ied  by  the  Arlrl 
on  the  Ist  of  August — KJ!*'^  oS'.  It  is  due  south  of 
the  Pribilof  Islands.  L  the  Argument  on  behalf  of 
Great  Ih-itain  attemnts  t )  establish  any  fact  it  is  that 
this  locality  is  the  "best  sealing  ground"  in  IWiiig 
Sea. 

At  page  03  of  the  Argument  Captain  Raynor  is 


cite 

1  70 

w  111 

HW) 
sam 

liec 
1 

rliif 
line 

It 

tirst 

tlie 

\vlii( 

( 

Isla 

\(»U 

A 

Q 

seal 

Did 

iiiak 

A 

cliai 

not 
the 
vo> 
iiltl 
;ire 
li'ro 
wh 
spd 
•'si 

r 

ria 
iirr 
nil 


I. 


»'    rccoivlcd  ill 

u  tliat  tlu'  vcs- 

rcference  from 

liuntiii<)-  l)()at, 

inaiiu'd  in  the 

U.St    1,  the  (lav 

\)\H'iu-  to  liavt' 
lo  tills  note  ill 
'  <lay  from  the 

iitl least  toward 
e  vessel  fi-om 
('  decision  was 
liich  time  the 
ntin<>-  was  ])os- 
ed  by  ('a])taiii 
)osition  of  the 
"  best  Nealiii;^' 
overed  ))y  ihe 
iunu-iit  on  be- 
>ied  the  "])est 
round  hunted 
it  is  stated  in 
tain,  occupied 
'ctly  over  that 
(■her  claimants 
•ted  to  bv  nil 
iji'ag-ed  in  the 

d  by  the  Arirl 
(hie  south  of 

t  on  l)ehalf  of 
fact  it  is  that 

id  "  in  IJerinii' 


in  Kaynor  is  % 


THi:    AKIEL.  4r)l 

(•ite<l  as  a  c}'m, l:\in  wlio  sealed  on  the  "Itest  sealin;:- 
grounds,"  and  at  line  2(i  his  location  is  stated  as  al>ont 
ITO*^  west  h>n<>itude  and  of)"'  n<»i-th  latitude.  Hut 
when  Captain  Bucknani  was  oc<'upyin«i-  the  p<»sition 
Itl!)^  55'  and  55'^  05',  wliich  is  almost  identically  the 
same  location  in  lierin<>-  Sea,  the  <iT(unuls  suddenly 
hecome  jxtor  sealinfi-  ^-rounds. 

Ueferrinji"  to  one  of  the  so-called  migration  charts. 
this  statement  is  made  iu  the  Argument  at  pau'e  51), 
line  1: 

It  sufficiently  indicates,  as  well  as  the  migration  chart 
tirst  referred  to,  the  comparatively  limited  space  between 
the  pass  of  the  Aleutian  Islands  and  the  Pribilof  group  in 
winch  seals  are  found. 

Captain  Bucknam  testified: 

Q.  You  were  nearer  the  line  running  from  the  Pribilof '^'.^I'^o.  lino 
Islands  to  IJnimak  J'ass  alter  you  had  been  warned  than 
you  were  on  the  day  on  which  you  were  warned? 

A,  Yes;  it  would  be  nearer. 

i).  Now,  you  have  told  about  hearing  where  the  good 
sealing  was  down  at  Victoria  before  you  went  up  tliere. 
Did  you  hear  that  the  sealing  grounds  were  between  Vni- 
iiiak  J'ass  and  the  Pribilof  Islaads? 

A,  No;  I  heard  they  used  to  be  there,  but  the  seals  had 
I'lianged  uj)  to  the  west. 

The  ])Osition  assumed  by  the  claimants  who  did 
ii<»t  heed  the  warniniis  "-iven  ])v  the  revenue  cutters  of 
the  United  States,  but  on  the  contrary  continued  their 
V(»ya(>'es  practically  until  tlu^  (dose  of  the  season,  is  that 
iilthou<>h  there  are  localities  in  the  lieriuLj-  Sea  whicdi 
are  known  as  the  "best  sealino-  urounds,"  these 
ji'rounds  were  i\ever  occuj)ied  by  tlicir  shi])s,  even 
when  the  location,  ])y  latitude  and  lonptudc  corre- 
sponds exactly    with   the  locati(»n  of  these  so-called 


tiO. 


sealino-  orounds." 


I'he  Ilioh  Commissioners  are  asked  to  tind  for  «tne 
clainumt  that  his  vessel  was  seized  and  her  operations 
arrested  while  huntinji"  in  the  most  desirable  place  in 
all   the  vast  expanse  of  water  formino-  Berinjj-  Sea, 


"«wn 


ssssssannmiMi 


452 


THK    AKIEL. 


]K'r('li!iiic('  the  claiin  he  olU'  of  totfil  loss:  ;m(l  fu  linl 
tor  tnuttlicr  cliumjiiit  tlint  liis  v.-sscl,  altliou;ili  limiting 
(»v('r  the  saiiic  ain-a,  after  the  uiiIummIciI  wai'iiiui:',  Ictr 
tlic  desirable  sealiii<i'  grounds. 

The  testiinoii\-  of  ('a|)taiii  lUb-knaiu  is  eiititleil  to  : 
noweiLi'lit;  on  the  I\ecoi«l  he  has  eomicted  liiniselfef 
the  willful  iiiteutitiii  to(le<'eive  as  to  the  \d\  ;me  if  tlir 
A>  /(■/,  and  his  claim  should  he  considereil  as  an  atteiii|i! 
to  nudct  daniaiics  from  the'',  ^-ernmeiit  (»f  the  I'liitcil 
States  for  the  interruptioi.  "f  her  N'oyan'e  from  tlic 
ijnth  of  .lid\,  when  in  fact  she  continued  her  InmtiiiL; 
o))erations  until  the  iSth  day  of  August,  and  he  treatctl 
with  accordingly. 

This  witness  was  called  iirst,  not  on  his  own  i)eliiill. 
hut  as  a  witness  for  the  purpose  of  |Li•i^'iu;Li•  testinioiix 
on  the  <ieneral  subject  of  the  catch. 

K.,  70;^,  hue      (^,  You  were  in  the  Ariel ! 
"•  A.  Yes. 

(^.  Wiieii  (lid  you  ^'o  into  the  sea? 

A.  i  don't  know  the  date.     It  was  about  the  lOth  of  July. 
Q.  xVnd  how  lony  did  you  stay  in  the  sea? 
A,  Came  out  about  the  3()tii  of  July,  I  think. 
Q.  1  want  to  know  t'.se  date  you  went  out:  how  long  did 
you  tish  there ' 

A.   r  don't  knoii  the  date.     The  Hhip's  hooks  are  lost,  and  the 
tog  liook  (dso. 

His  direct  examination  closed  after  the  informatieii 
of  liis  total  <'atcli  was  elicited. 

Hie  witness  had  not  been  called  in  the  claim  of  the 
Ariel,  but  the  Iirst  ((uestion  asked  him  on  cross-exam- 
ination was: 

R.,  704,  lino     Q.  You  did  not  state  that  you  went  out  during  the  uioiitli 
20.  of  July,  did  you? 

A.  I  said  1  was  ordered  out  on  the  30tii  of  July. 

The  question  was  insisted  ujxni  and  the  witness 
answered  "No." 


The  cross-examination  of  the  witness  continued  at 
eonsideral)le  len<ith,  and  he  was  forced  to  make  the 

(>• 


K.,  706,  liue admission  that  he  liau  ninih'  an  ailidavit  statinii'  tin 


THH    AKIKI,. 


453 


;s  :   ;ui<l  td  lii 
lotii^li  liuiitiii'^ 
1  waniiuj:'.  Ictt 

t 
is  ciititlcil  to 

ted  liiinsclfof 
\(>y;iov  .if  til,.  I 

I  ;is  Mil  ;irt('iii|tt 

t  of  the  rnitcil 

;i,a'<'  tVoiii  till' 

<1  lici-  liinitiii;: 

nii'l  !)('  trciiten  ^ 

lis  own  ix'lijilf, 
iiiii'  tcstiiiioiix 


the  loth  of  July. 

ink. 

it;  hosv  loii;^'  did 

V  are  lo,st,and  the 

:lu'  iiiioniiiitioii  f 

lie  claiin  of  the 
on  cr<»8s-exani- 

uiing  the  inoiitli 

»f  July. 

id    the  witiK'ss 


<s  ('((iitiiiiiod  at 
I  to  make  tlic 
vit  stating-  tlml 


lie  liad  left  tlic  sea  on  tlK'21stof  An;iust;  andlinally 
\' as  asked: 

(}.  Have  you  any  record  of  your  Heiiii^'  Sea  catch  in  ISS'J,  K..  708,  line 
siich  as  you  showed  inc  for  the  year  18!>0?  -"• 

A,  No;  I  haven't. 

(f.  Have  you  the  \oiX  of  the  Ariei  for  the  year  ISHJH 
A.  No;  I  have  a  kind  of  rough  diary. 
Q.  Wliere  is  thatt 

lie  then  re(|iiested  liis  in(^inoran<liun   l*ook  to  be 
i;iv<'n  liiiH. 

The  witness  was  ivealled  some  weeks  hiter  nid  tes- 1^-.  nv.t,  liuo 
tilled,  on  his  <»wii  behalf,  with  reference  to  fhe  (daini 
(if  th(   Aril'/,  (Hreetlv  from  the  nuMiioraiKhim  which  lie 
|ii'odn('e<l  when  <tii  the  stand  before,  after  beini>'  ])ressed 
(111  cross-exaniinatiini,  and  read  therefrom  the  entry  k.,  ijiwjiue 
under  <late  of  Jnly  .'{(>.  •^• 

Q.  You  had  seen  this  ineinora.iiduin  Just  a  few  days  before  '*•  ^*^^>  '"le 
you  took  the  stand  on  tlie  23d  of  December,  had  you  not?        ^*'' 

A.  I  had  it  in  luy  jtossession. 

().  And  you  had  looked  at  it,  and  talked  with  counsel  about 
it,  had  you  not? 

A.  You  mean  the  day  1  appeared  here? 

Q.  Yes. 

A.  The  counsel  had  it  at  that  time. 

Q.  But  you  had  talked  with  them  about  it,  had  you  not? 

A.  I  had  t.jroken  with  them. 

<\).  I5ut  you  knew  what  time  y(m  left  Uering  Sea  when  you 
were  on  the  stand  before? 

A.  J  could  not  tell  without  tlie  diary. 

(}.   Ifhl  you  not  l,>ioir  that  i/ok  had  that  diary  a'lwn  yuu  took 
the  stand  Jirstf 

A.  7  kiK'w  that  couii.s<l  had  it. 

Refer  to  the  testim(»n\'  of  the   witness  on  the  "23(1 
(l;iv  of  l)eceml)er,  where  he  sai<l: 


().  And  how  long  did  you  stay  in  the  sea? 

A.  ("anie  out  about  the  .">Oth  of  July,  I  think. 

().  I  want  to  know  the  date  you  went  out '  How  longdid 
you  (ish  tlieie .' 

A.  /  don't  huioir  the  date.  The  8hip\s  hooh,:ar<  lost,  and  the 
li><l  hooJx  also. 


If..   7(t:{,  line 
tl. 


'i.WU>JU>»i*<'iLuiuiv.m'aimmi 


45-1 


THI-:    ARIEL. 


\U\\  littlf  wc'iLilit  will  he  ti'i\('ii  ti)  the  tcstiiiKHiv 
<»t'  rliis  witness  r('U';n"<liii.U'  the  iii<)\ ciucnts  ot"  his  >|ii|i 
iit'tcr  the  (l;itc  of  the  wjiniiiii;'  He  iiindc  the  dclili- 
<-r;it(*  iiftciiipt  to  ('stMl)lisli  tli;i1  his  ship  h'tt  tlic  mm 
the  .'loth  tif  ,liil\\  and  it  was  iKtt  until  toi-ccd  In-  ilic 
(•ri»s>-c\aniinati(in  to  surrcnth-i' liis  incniorinKhnn  th;it 
hr  (liii  so.  alter  haxiuii'  stated  thai  he  was  inia!>le  \u 
li\  the  date  Ix'cause  the  hooks  were  hist 

This  same  witness  en(h'a\(»red  to  e>1al>nsli  the  laii 
that  he  inteiuh-d  to  seal  in  IJeriui;'  Sea  in  the  inoiilli 
of   (  h'toher. 

i}.   I'or  wiiiit  time  did  you  outtil  rlic  \essel .' 
];.,  lir.!i.  liiii'      .\.  'I'o  iiijike  a  Idiiii' sciisnii.     We  intciidtMl   to  try  Octolicr 
'"'''■  senlinj;'  in    tlie    I>('riii<;-  Sea.  and   we   titled   oat  for  a    loiii; 

seas(»ii. 
((>.  To  reiaaiii  until  October  in  tlic  lieriiiji'  Sea' 
A.   Vcs,  sir. 

(Ml  •Toss-examination  he  testilie<!: 

1'"*'  ().  Wlio  ;^ave  yon  information  there  was  yood  sealii:j;  ii;i 
there  in  October  ^ 

A.  ]My  anite  said  lie  had  l)e<ii  spoken  to  by  a  wlialer  ;ai(i 
one  of  my  hunters,  and  we  liad  lieard  that  peo]»le  ot  ilie 
islands  thoujiiit  that  October  was  a  good  month  to  he  llicrc 

<i>.  Had  yon  ever,  before  you  went  there  in  ISSU,  heard  a 
sealer  sav  he  had  been  up  there  sealing  in  October? 

A.  N<C 

i).  Can  you  give  nie  the  name  of  a  vessel,  before  18S5*,  tiiar 
was  in  Ikning  Sea  in  Septend)er? 

A.  1  was  I  ot  aetjuainted  with  the  busintsN  before  18S1I; 
that  was  my  lirst  year. 

Siirli  testimon\'  liixcn  ]>\'  this  w  itU'ess  will  not.  n  i> 
appi-idiendcd,  be  made  the  hasis  tor  (xtendinii'  the  tiiir- 
t'of  which  the  hiiiitino'  \"oya^'e  wtudd  ha\e  eoiitinned 
l)OV(»nd  the  ordinai'\  limits  fixed  1>\"  the  general  tes- 
timony on  tliat  subjeei. 

In  tlu;  Aru'inneiit  on  lududf  of  (in^at  Britain,  treat- 
in<;'  spcH'itieally  tliis  elaim.  tlie  statement  is  madeihat 
the  mate,  Smith,  correltoratefj  the  testiiiKtiiv  of  tlic 
ca])tMiii  "that  it  was  his  intention  to  tr\   t^ht^  October 


R..  1 47: 

3(!. 


M.al 

>Mpi 

'J' 

A, 

that 
liim 
ihel 
and 
as  p 

u  iii( 
A 

S'KK 

aiiv' 
I      <.>. 

repd 
ill  tl 

the 

rvp 

rxp 

was 

Q 

A 

altll 
iia( 
I 

-  o\ 

he' 
1 1  es 
-eft 
;it  } 

Is 

X 

\cs 


§ 


TllK    AiilKL. 


155 


the  t('Stilll()ii\ 
Its  of  liis  slii|i 
wlc  the  (Iclll.- 
])  left  the  >c;i  , 
Idi'ccd  l)\-  I  he  i 
loi'midtnii  tliiii 
\v;is  tiii;i!>lc  td 

r 

il)li>li  ;llc  t;i(i   i 
ill    tlic   iiiuiitli  l 


to  try  Octdlici' 
out    lur   :i    Ioiil; 


Sea  ? 


^ood  scaliiiji  uji 

)y  a  wiialer  iiuti 
it  peo])le  of  tlie 
»iitli  t<)  ht'  there, 
in  ISSU,  heard  a 
iftober  ? 

•efore  18S.M,  that 

^is  betore  ISSD; 

>  will  not.  ;i  i>  1 
iidiiifi'  the  tiiii" 
jnc  ('(mtiiiiicd 
le  ^rtUTjil  tcs-  ^ 

Hritniii.  trcai- 
1  is  luiuh'  'hat 
■inidllN'  nt  the 
r  Htio  Octolu'i' 


M  aliiiLi',"'  and  the  Kccoi'd  (p.  I  tsj,  line  ."»S)  is  cited  in 
>ii])|>t.;t  ot  tl.at  stati'incnt. 

Tlic  ti'stiiiioiiy  of  tilt  witiH'ss.  Smith,  tiici'c  i;i\fn,  is: 

(}.  NVliat  uiulerstaiKliii^'  was  tlicre? 

A.  Oil  several  oecasioiis  we  met  on  board  the  schooner — 
that  is,  the  hunters  and  inyseit  met  the  ciiiitiiin  and  asked 
liiiii  to  lit  tlie  vessel  well  out.  as  siie  was  at  tlmt  time  one  of 
ilie  hiryest  vessels  out  of  Victia'ia  Harbor,  a  staunch  vessel. 
Mild  we  had  all  made  up  our  minds  to  make  as  lou<;  a  seiison 
,is  i)()ssible  on  previous  rcpoils. 

<i>.  Was  t  here  any  mouth  nienlioned.  orany  time  mentioned, 
uhieii  you  desired  ta  I'emain  in  IJeriii;;'  Sea  ' 

A.  \V(dl.  I  l»elie\('  that  I  Wiis  ou(^  ot  tlie  parties  that  per- 
sinided  the  cai)tain  to  ju'ovisiou  the  vessel  up  until  <>ctolier, 
miyway. 

<v>.   What  do  you  mean  by  "iii)  until  October.'" 

A.  To  iillow  us.  ir  the  weather  permitted  us,  ami  if  the 
reports  were  true  with  regard  to  seals  bein<;'  Ibund  that  month 
ill  the  i>erin,<4-  Sea.  that  we  would  be  able  to  stay. 

Tliis  witness  was  in  the  Heriiiii'  Sea  in  ISIM),  on 
the  Kafliin'iiic,  :ind  it"  he  desired  (••  X\'\  his  nnheard-ot" 
experitnent  of  ( )ctol)er  sealiiiii',  it  iniiiht  reasoiiiiliK  he 
e\pecte(l  to  ))e  found  that  the  \(»\at;'e  of  that  \-essel 
was  continiied  until  ( )ctoher,  Imt  the  witnes.s  lestitied 
till  cros.s-exainination: 

(v>.  What  time  did  you  come  out  of  the  sea  in  1890? 
-V.  31st  of  August. 

And  lie  o-ave  no  i^xphnuition  as  to  flu  retison, 
altliouoji  OH  I'edirect  exiniiinatioii  an  atteiiiut  v/as 
made  to  ascertain  wliy  he  left  the  sea  at  tliat  time. 

From  four  to  five  dsivs  are  re(|iiired  to  make  the 
\ovao-e  fn^ni  the  hx'ation  where  the  vessel  <-hances  to 
he  Innitiuo-  to  one  ot"  the  ])asses:  therefore  this  wit- 
ness himself,  haviii;:  the  opportmnty  t(»  continue  his 
■^lidiiio'  voyao'e  initil  Octoher,  left  the  sealino'^i'romuls 
id  about  the  2(!th  of  Aiioiist. 

No  proi)erty  was  taken  from  the  Arir/,  and  the 
•  Jovernment  of  the  I'nited  States  claims  that  this 
vessel  shoiihl  he  awarded  the  minimum  of  dama|;es, 
if  any   .sum  wduitever,  because  of  the  dishonest  at- 


K'.,  IISI,  lim, 

.">S. 


R.,  1186,  lino 
40. 


BSB 


456 


THE   ARIEL. 


temj)t  to  make  out  an  aggravated  claini.  HowevtM-, 
should  the  1  liji'h  ( 'oniniissioners  decide,  uotw  ithstand- 
mg  the  false  })ositiou  taken  by  the  captain  and  pint 
owner  of  the  vesisel,  to  award  damages  for  the  bal- 
ance of  the  season,  the  owners  would  be  entitled  to 
demurrage  from  the  18th  of  August  to  the  20th  or 
25  th  of  that  month. 


THE  KATB. 


Claim  No.  20. 

Tlie  Kate  entered  Jierino'  Sea  on  tlie  24tli  of"  Jiih',  IJ..  i"!"7,  lino 
|1S81>,  caiTviuo- ('i<'-lit  canoes  and  Indian  luuitcrs  On 
ln'  l.'Uli  day  of  Anji'U.st  slio  was  warned  by  tlio  United 
jStiites  revenue  cutter  Uirhaiil  linsh  to  leave  Herinji' 
ISca,  under  threat  of  seizure.  No  part  of  the  outfit  or 
|(iir<>'o  was  seized. 

Tlie  warning-  to  leave  the  sea  was  not  obeyed;  but •' -.^.1378,  line 
imi  the  14t]i  of  Aiioust  the  mate  entered  in  his  loi*': 

August  14. — Tliis  day  begins  with  calm  and  heavy  seaK.,  I'Hs,  line 
lirom  westward.    At  ](»  a.  ni.  oanoes  out,  and  returned  at  (•     '''• 

m.;calm.    The  remainder  of  the  day  wind  westerly  and 
jcioudy;  pumiKS  light. 

On  the  1  ")th  of  August  this  entry  was  made  in  the 

lloti': 

At  noon  wind  soutlierly,  and  hauling  to  the  southeast;  K.,  1378,  line 
lij:ht  breeze.    At  (i  a.  m.  canoes  out,  and  returned  at  4  p.  m.    '•'• 
|\Vind  continued  the  same.     Hove-to  under  tbresail  during 
lie  night. 

On  tlie  Kith  day  the  entry  in  the  log  reads: 

At  noon,  southerly  wind  and  thick  fog;  at  8  a.  m.  set  theK-,  i:^"!',  line 
1)  and  double  reefed  mainsail  and  beat  to  windward.     (Jon-     '-• 
[tinued  foggy  the  remainder  of  the  day. 

The  entr\'  in  the  log  luider  date  of  August  17  con- 
Itiiius  this  entry: 

blowing  strong  and  heavy  sea.  and  rain  and  fog,  i>umi>s  l*'-,  i:<7!t,  line 
nht,  lookout  carefully  attended  to.  '*•''■ 

( )n  the  l.Sth  of  Aujiust  the  lou'  shows  that  the  vessel 
lighted  Ugemok  Island,  which  would  indicate  that  she 
It't't  Bering  Sea  through  rnimak  I'asson  that  da\, 

457 


4r.s 


THK    KATK. 


I 


K'..  i;iN(t. 

20. 


A. 
t). 
A. 

A. 
Tl 


11. 


K.,  i;i82, 
63. 


42. 


''""      'I'lic  liiiiitcrs  liiid  iikkIc  a  tttr;il  catcli  of  730  or  T4i>', 
seals   in    I5criiii:'   •''^I'li,   wliicli    were   dcliNcrctl    to  iIm 
o\\  lici". 

I''roiii  the   l.'Uli   ila\'  of  Aiiu'iist,  tlic  (Ia\-  on   wlml 
flic    \<'ss('l    was   warncil.  until    the    li^tli,  she   lowcici 
licr  canoes  tw  ice,  hnntinu'  the  full  daxs.      Tlic  ciilricsj 
in  ilic  lou'  for  the  other  intei'xcninn'  (la\s  showed  di;ii, 
the  weathei'  would  not  pei'init  ot'  sealinu'. 

liii''  The  te-^rinion\  of  Alexander  iveppen,  the  )ii;itc, 
shows  tliat  the  /\<itr  hunt('(l  e\-er\'  <la\'  lietween  rlic 
da\'  of  the  warnini;-  and  the  da\'  of  hei'  lea\inii-  tiic 
sea  that  |iernntted  of  the  lioats  hein;^'  lowereil. 

(}.  Xow,  wiiit  a  iiiiimte.     'VW  fact   is,  (liat  between  tlic 
\'>\\\  (lay  of  Auji'Mst  and  tlic  ISth  day  of  An<;iist.  inclusive,  it 
was  s(»  storniv  that  yon  conkl  not  lower  a  sealing  l»oat,  wasl 
it  not:' 

A.  No,  sir. 

i).  VVliat  do  you  mean  by  that;  it  was  or  was  not? 

.V.   Von  couldn't  lower:  it  was  strong'  and  wind>.  f 

(}.  So  that  it  you  had  not  been  warned  on  the  l.')th,oii  tin- 
HJtIi,  17th,  and  ISth  you  couhl  not  have  lowered  your  bosits 
anyway,  could  you  '. 

A.  No,  sii'. 

The  sealiiiu'  season  in  l)i'rin<>-  Sea  was  practieally 
(dosed,  and  the  damage  that  tliis  vessel  sustained  is 
vi'vx  slight. 

The  witness  He])])en, who  was  mate  on  flu*  voya^'c, 
testified: 

lint'  (}.  Von  left  Bering-  8ea  that  year  about  the  time  the  nasty 
weather  .set  in,  did  you  not ' 

A.  Yes,  sir. 

().  And   about   the   time   that   the  westerly   winds  were 
beginning'  to  be  the  prevailing  winds — strong  westerly  winds.l 
Is  not  that  so.'  | 

A.  Yes,  sir;  we  were  getting  westerly  winds  all  along.      \ 
lint'     Q.  And  you  think  that  you  came  out  in  ISS1>  when  iirctty 
nasty  weather  was  begiiniing  ' 

A.  Ye.s;  some  fine  weather,  too,  before  we  went  througii 
the  Pass;  and  then  it  started  in  nasty  afterwards.     Fiiie< 
weather  the  day  before  the  day  we  went  to  the  Pass.  l 

().  It  was  not  tine  weather  the  day  before  you  went  to  the|    '^'" 
Pass  ? 


In  11 

III  id 
nidi 
vca 

I'llV 


Tin;    KATE. 


4;')  5) 


1  <»t'  7i3(i  or  74ti 
livcrcd   to  tlui 

<l;ty  on    w  hie 
til,   siic    loWCl'c 
'I'lic  ciitrii 
lys  sliowcd  lli;ir 
iil;'. 

pell,  tlic  lii;itc, 
ly  hctwccil  tli(^ 
U'l'  I('ii\iiiL;'  tlic 
low  crtMl. 

Hint    Ix'tWOCll    til." 

ji'iist.  inclusive,  it, 
scillili;^'  l)oat,  \v;is 


'  Wiis  not.'  I 

I  windy.  f 

n  tlie  i;itii,oiitla'| 
Wered  your  hoatsl 


was  jjiacticallyl 
sel  sustained  isl 

on  tlic  voxaiic,! 
lie  time  tlie  nastv5 

erly   winds  wcir-^ 
ff  westerly  winds.  I 

I 
in  (Is  all  aloiiji'.  | 
ISS!>  when  picttV} 


.\.  Two  days  hi't'oic  that. 

(}.  The  l.')th  was  the  last  tine  day  vim  had  J 

A.   Yes. 

(},  And  vou  lowered  your  canoes  on  thai  dav.' 

A.   Yes.  ■ 

riic  witness  testilieil  that   lie  \\a>  in  I5criiiii'   >^t'a  in 

!'■  \cai"  ISSSoii  llic  I'lilhliinlcr.  and  was  not  w  anieil;  k.,  i 

raiiie  out   the    ir)th  ol'  Anuiist.  as  near  as    1    can  re-     '^^^ 

iiiiher;"  that  he  was  on  the  lihul;  hiniiKiiiil  in  1*>S7  i;..  i 

•a. 


\K\.  line 
is:'i,  linn 


^    h't't     I'x'i-iiiLi'   Sea    "alioiit    the    l')!h    of   .\iiHnst.   I 


ive  Avent  throiigli 
i'terwards.     I-'iiie 
the  I'ass. 
3  you  \vent  to  tiie  \ 


■\\\\\K. 

(  'a|)tain  Moss  was  aske.l  rciiardiiiii'  the  time  that  he 
ilciided  to  sta\'  in  the  sea : 

'^>.  Now  tell  mc.  Captain,  what  were  your  instiiictiniis  as  ix'.,  i:;s7,  lino 
n  I  lie  time  yon  should  stay  in  the  sea.'  •"''• 

A.  .My  instiuctioiis  were  to  stay  tliere  as  loan'  as  the 
vciithei'  would  permit. 

(  )n  eross-exainination  this  witness  was  cxaniineil  as 
1  the  time  when  he  liad  K-I't  the  sea  in  t'onner  xcars: 

t^).  What  boat  were  you  on  in  1S86.' 

A.  Oil  the  FavoHfltv. 

<^  What  time  did  yon  leave  the  sea? 

A.  About  the  lOtli  of  An<just,  1  think. 

().  What  boat  were  you  on  in  1S87  .' 

A.  1  was  on  the  Kate. 

^}.  What  time  did  you  leave  the  Uerinj"'  Sea? 

A.  Twentieth  of  August,  or  a  little  later;  1  dou't  reiiiem- 
icr  as  to  a  day  or  so. 

<}.  What  boat  were  you  on  in  188S  ? 

A.  The  Faronrifc. 

*).  ^Vhat  day  in  August  did  you  leave  die  sea  in  that  year  ? 

A.  I  do  not:  remember  what  'lay  ic  was;  it  was  la*^^e  in 
August. 

The  testimony  ot"  the  e  iptain  and  tlie  mate  certainly 
In  not  Avarrant  the  claim  that  this  vessel  would  have 
>r;iid  in  Herin_i>'  Sea  until  the  Hrst  of  ()ctol)er:  hut  iu 
nldition  to  the  fact  that  the  mate  thou;^ht  the  had 
nather  had  set  in,  and  that  it  was  the  usual  time  for 
!i;ivinii'  the  sea,  accordin;^'  to  his  experience,  and  the 

lal  time,  accordino-  to  the  experience  of  the  ca[)tain. 


400 


THK    KATE. 


41. 


as  t<'stifi«Ml  to,  the  Kccord  <-ont!iins  the  positive  state 
nuMit  of  the  owner  of  tliis  Nfsscl  rcjiardinji'  tlu*  dum 
tioii  of  tlie  voyao(',  hroii<>iit  out  on  direct  exaiiiiiia- 
tion. 

I{.  1371  line  ^^'  ^*"^  y**'^  f?'^'®  ''''"  (^''*^  raptaiii)  any  instructions  as  t( 
'        the  time  he  was  to  stay  in  the  sea? 

A.  He  was  to  stay  as  U>ng  as  he  i)Ossibly  eouhl  carry  oi 
his  seaiinjj^. 

Q.  No  more  instructions  beyond  that? 

A.  Nothing  more.  I  considered  that  he  was  well  aware  o 
the  work  he  had  to  attend  to. 

().  With  re},'ard  to  provisions,  how  long  did  you  provisioi: 
the  boat  for;  what  length  of  voyage! 

A.  About  the  middle  of  September,  to  reach  here  in  Vic 
toria. 

No  citation  of  testimony  is  necessary  to  prove  tlia 
tlie  time  ol•dinaril^•  consumed  in  makiim'  tlie  voxamj 
from  Bering'  Sea  to  Victoria  was  in  tlie  neij^hborluHM 
of  fifteen  to  seventeen  days,  and  tliat  tlie  avera^iu^ 
time  consumed  1)V  a  sealinji"  schooner  in  stowiii"! 
away  lier  small  boats  and  in  ])re])arinf^  to  leave  tluf 
]5erino'  Sea  for  her  return  voyage  and  in  making  tlift 
passag'e  from  the  place  in  the  sea  where  she  chaiiccfli 
to  he  sealing  to  the  Pass,  was  alxuit  five  days.  | 

Accordingly,  (Hi  the  statement  of  the  owner  liiui-|; 
self,  the  voyage  of  the  Kate  would  have  ended  tlm 
2r)th  of  August,  and  she  sealed  c(mstantlv  until  tlii| 
17th.  ■  I 

Helyea's  charges,  82r)(),  depend  up(»n  the  same  con- 
tingent arrangement  as  all  of  these  charg'es  in  the  vari- 
(His  claims.  \ 

There  is  no  testimony  cited  from  the  Record  n|i(Hi 
Avhich  to  base  the  claim  for  "time  and  expense  nt: 
owner,  8200,"  and  there  is  no  such  testimony. 

The  Kate  was  built  in  1802  and  her  registered  toii- 
nag'e  is  oH.ll. 

This  vessel  is  entitled  to  recover  from  the  (jovcrii- 
ment  of  the  United  States  denuirragi',  as  in  case  ot 
detention,  from  Aug'ust  18  unril  the  chtse  of  the  scal-i 

i 

•     i 


illg     f 
Hill 

r 

•like 
i\\  11' 
/iikc 
jit  I' 
IVaii 
iraui 


R.,  1391,  line 
45. 


THE    KATE. 


4(;i 


«*  positive  stateMiij^-  sensoii;  that  is,  for  a  pcrioil  \  aviutisly  cstimatnl  at 

inlinji'  tlu'  (luraMi'diu  two  to  seven  flays. 

direct  exaiiiinafl   'Plie  tact  that  the  siip|)iies  ahoard  the  \  es>el  were 

sen  otV  at  tiie  tiadiii^-  |)ost  oi'  ( 'harh's  Spring',  the 
iiistrnctions  as  t(|   ■v'*  lu-r,  on   her  return  N'oyaj^'e  to  \  ictoria,  should    he 

xcn  into  t-onsifh-ration;   as  sh<»uld  also  the  tact  that 
bly  could  carry  oii    ^,    Kvu(|Uot,  and  other  phices  (»n   thi-   west   c«tast  of 
f  jViUUMMiver    Ishunh  she  was  loa(h'd  witli  a  caj'jio  t(»r 
was  well  awareol  iiansport  to  \  ictoria. 

did  you  provisi()i| 

reach  here  in  Vi(| 

iry  to  prove  thiitf 
<in<>"  tlie  vo\'iiy(| 
lie  iiciu'hborh(Mi(l| 
hat  tlie  averajid 
)iier  in  stowiii}j;| 
iiiff  to  leave  tlu^ 
id  in  making-  tlu* 
lere  slio  clianccd 
five  days, 
the  owner  hiiii- 
have  ended  tlic; 
stantly  until  tlu' 

on  the  same  coii- 
iru'es  hi  the  vari- 

the  Recftrd  updu 
and  ex})ensc  nt 
t'stimony. 
I'r  reji'istered  teii- 

foni  the  (Jovcrii- 
i'e,  as  in  case  ct 
dose  of  the  sciil- 


.  IHMI.  lilies 

i:.,  :>-J:  U., 
i:isi. 


f.-/ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


/. 


// 


.V4 


1.0 


1.1 


iiii2.a 

|jo   ■^" 


2.5 
2.2 


Ht   M£    12.0 


Ng 


1.8 


L25  iu  lii^ 


V] 


72 


/: 


7 


PhotDgraphic 

Sciences 
Corporation 


23  WIST  MAIN  STREET 

WEBSTER,  N.Y.  MSSO 

(716)  872-4503 


H 


R.,  1811,  li 
20. 


lie 


the  pathfinder. 
Claim  No.  21. 

^^his  claim  ari.ses  from  the  seizure  of  the  Pathtimk\ 
in  Neali  Hay,  a  harbor,  in  what  was  at  that  time 
\Vashiii<>ton  Territory,  a  ])ai*t  of  the  United  States  ^^{ 
America,  on  the  27th  or  29tli  of  March,  1890.  Tht 
seizure  was  made  by  the  commanding-  officer  of  tht 
United  States  revenue  cutter  ('orwin  on  the  grountl 
that  the  vessel  had  been  seized  in  Bering^  Sea  in  tht 
year  1889  for  violation  of  the  municipal  laws  of  tlu 
United  States  and  instructed  to  ])roceed  to  SitksiJ 
there  to  be  suiTendered  to  the  authorities;  and  that 
she  had,  contrary  to  instructions  given  her  captaiiJ 
by  the  commanding  officer  of  the  United  States  cut-j 
ter  Ititshj  refused  to  surrender  to  the  jurisdiction  o^ 
the  court  of  the  United  States  in  the  Territory  oi 
Alaska,  but  instead  i)roceeded  to  Victoria. 

William  Munsie  and  Frederick  Carne,  jr.,  citizens 
of  Great  Britain,  owned  one-half  of  the  Pnthfitiikr\ 
and  Andrew  J.  liechtel,  a  citizen  of  the  United  States 
of  America,  owned  one-half 

The  admission  was  made  on  behalf  of  Great  Britaiiij 
that   the  interest  of  Bechtel    in  the  Pathfinder  haclj 
remained  unchanged  from  the  time  of  her  seizure  '\\i 
188!),  at  which  time   he  was   a  half  owner  in  tli 
venture. 

The  vessel  was  seized  March  27,  1889,  as  shown! 
by  the  findings  of  fact  of  the  Tribunal  of  Arbitratioiil 
convened  at   Paris,  and  in  a  footnote  to  the  tahloj 
found  in  Annex  C  to  the  Tribunal  of  Arbitration  tlitl 


402 


THE    FATHFINDEK. 


463 


tiitemont  is  made  tliut  she  was  released  two  davs 
atcr. 

Alexander  Re}>})eii,  the  mate,  called  as  a  witness 
11  behalf  of  the  claimants,  was  unable  to  fix  with 
iccuracv  the  date  of  the  seizure,  althoujih  he  testi- 
icd,  "We  started  from  Neah  Hay  at  (I  o'clock  in  the 
iiornhig' and  came  to  Port  Townsend  about  12  o'clock  ^y.^^^^a,  Uue 
11  the  forenoon." 

riie  telegram  sent  by  the  conunanding-  officer  of 
lie  Cnnritt  to  the  Secretary  of  the  Treasury  at 
IViishington  placed  the  date  of  the  seizure  as  March 
ill.  On  that  dav  he  telegraj)he(l  the  Secretary  of 
lie  Treasury,  Washington,  from  Port  Townsend,  as 
'iillows: 

1  found  at  Neah  Bay,  Wasbington,  today,  British  schooner  K.._i8io,  line 
hthfinder.    Escaped  from  steamer  Runh  after  seizure  in    ^• 
Bering  Sea  last  year.    Have  detained  and  brought  her  to 
jiliis  place  and  transferred  to  custody  of  collector  of  customs 
lending  advice  from  Department. 

Another  telegram  was  sent  on  the  same  day  to  the 
t'cretary  of  the  Treasury  by  C.  ]\I.  Bradsliaw,  col- 
ctor  of  customs  at  Port  Townsend. 

Am    detaining    British    schooner    Pathfinder,    awaiting 
sstructions.    Please  advise. 

George  H.  Tichenor,  Assistant  Secretary  of  the 
icasury,  rej)lied  to  the  telegram  of  the  collector  of 
iistomsat  Port  Townsend,  under  date  March  2J),1HJ)0, 
s  follows: 

in  the  year  1887  the  Department,  in  a  case  quite  sinn'lar,  R.,  1810,  line 
lit  in  some  respects  stronger  for  the  Government,  decided    >"»y- 
lit  the  vessel  could  not  be  held.    In  view  of  that  precedent, 
ithout  now  reviewing  the  principles  ujion  which  it  pro- 
wled, I  direct  the  release  of  the  Pathjindcr. 

The  schooner  was  accordingly  released,  but  instead 
proceeding  on  her  voyage,  sailed  across  the  Straits 
|t  Juan  de  Fuca  to  Victoria,  where  she  was  dehiyed 
w  eek  undergoing  repairs. 
The  seizure  was  n()t  the  cause  of  the /V/(/?«(/f'r  pro- •<•-  *^p3,i'iie 

|(eding^  to  Victoria.     If  the  vessel  had  returned  to    Hue  42.  ^' 


464 


THE    PATHFINDER. 


( 

( 

I'oi 


■  rhi 
Vv 

DIM 

iirti 
me 

1k' 


R..  81'I. 


K.,  x^l'l,   Hue 


Neali  Hay  aftor  Iut  release,  slie  would  have  anivtM 
there  on  the  iiijiht  of  March  2!),  and  the  seiziin^  ^''* 
would  have  resulted  in  her  detention  from  the  morn 
in<i'  of  the  ■29th  (tf  March  to  the  nijiht  of  the  saiiK 
day,  or.  according"  to  the  findings  of  the  I'aris  Trj 
Imnal,  in  her  detenti(>n  for  tincr  thiifs. 

In  the  itleadinys  tiled  before  this  IJi<ih  Commissioi 
at  N'ictoria,  daina<ies  are  claimed  to  the  amount  o 
>^'J,0()(>:  l)ut  in  the  Arji'ument  the  claim  is  ma<U'  loi 
^.'i.TOO.  'Phis  includes  an  item  for  daina<ies  for  "ille 
^al  hoarding',  search,  and  arrest  of  the  vessel,  rS2,0()<).' 

A  claim  is  also  made  for  "personal  and  leg'al  ex 
penses,  s-joo." 

There  is  no  testinntny  in  the  liecord  of  any  expendi 
tures  made  hy  the  owners  on  account  of  the  seizure 
and  no  testimony  is  referred  to  in  the  Argument  oi 
behalf  of  Great  iiritain.       ,  .     , 

If  the  vessel  is  entitled  to  any  damag-es  it  is  f<t 
denuuTaji'e  for  a  ])eriod  of  one  or  three  (lays. 

Alexander  Heppen,  the  mate,  was  the  only  witncsi 
called  on  behalf  of  the  claimants  to  testify  concern 
ing'  the  occurrences  at  the  tinxe  of  the  seizure. 

(J.  Were  you  on  deck  when  the  se^znre  took  place? 

A.  Yes,  sir. 

if.  Just  as  briefly  as  you  can  tell  us,  what  was  said  an# 
done  by  the  officers? 

A.  The  officer  went  to  the  cabin  to  examine  the  pape 
and  he  came  on  deck  and  the  captain  came  on  deck  and  toli 
me  that  they  had  seized  us. 

Q.  Your  own  captain  t 

A.  Yes,  sir. 

Q.  Well,  go  on. 

A.  The  ofticer  from  the  Corwin  went  on  board  the  ciitti 
and  sent  a  crew  of  men  with  a  towline  on  board,  made  fa 
to  us,  and  towed  us  to  Port  Townsend. 

Q.  Was  there  any  conversation  that  you  heard  take  place 
were  there  any  orders  or  instructions  given  that  you  hean 
about  heaving  your  anchor,  or  anything  of  that  kind! 

A.  The  same  officer  came  on  board  again  and  told  us 
heave  our  anchor,  and  we  were  bound  for  Port  Townsend. 

Q.  Was  there  any  answer! 


IISS 

the 

SCI 

r;\\ 
ill 


THE    PATHFINDER. 


4G5 


1(1  luive  aniveii 
ind   the   seizun 
t'ntin  the  nu)ni| 
iht  »>t"  tlie  siini^ 
:'  the  Paris  Tiij 

iu'h  Cominissioi 
I  the  iniioiint  ol 
iiini  is  iiiii(U'  toj 
miajies  for  "ilk-] 
;  vessel,  ^2,000.1 
»1  and  legal  exi 

1  of  any  exj)eii(li| 
It  of  the  seizurel 
he  Arj^ument  oij 

amajjes  it  is  foj 
•ee  (lays, 
the  only  witnesj 
>  testitV  couceriif 
le  sei/Aire. 
took  place? 

what  was  said  anj 

xatnine  tlie  paper 
le  on  deck  and  tol^ 


>n  board  the  ciitte 
n  board,  made  faa 

1  heard  take  place- 
iven  that  you  hear] 
of  that  kind! 
jaiii  and  told  us 
r  Tort  Townseud. 


A.  Answer  to  that?  1  went  and  told  the  men  to  heave  up 
I  tlie  anchor. 

Q.  Did  you  do  that  at  once,  or  was  there  a",  answer  before 
I  you  did  that  1 

A.  Not  any  that  I  know  of. 

Q.  You  were  instructed  to  neave  your  anchor,  and  you  did? 

A.  Yes,  sir. 

Q.  Then  what  did  they  do  ? 

A.  Then  they  towed  us  out  of  the  harbor  and  took  us  to 
I  Tort  Townsend. 

The  Government  of  the  United  States  asserts  that 
this  vessel  was  seized  within  the  jurisdiction  of  the 
L  nited  States  in  o-ood  faith;  that  for  the  purjtose  of 
inakinjr  an  investigation  she  was  towed  to  the  nearest 
t('le<»ra})h  station,  and  there  released  as  (juickly  as 
i»rders  could  be  received  from  the  executive  (le})art- ^'g ^^^^' ^*°® 
iiient  of  the  Government,  and  that  no  damages  can 
be  awarded  her  owners. 

The  vessel,  having- been  forced  into  Neah  Bay  under 
distress,  had  the  rig-ht  granted  her  by  the  law  of 
natiims  to  dejjart  without  interference:  but  in  order 
that  the  claimants  might  be  in  a  position  to  advance 
the  claim  (»f  jn'ivileg'e,  it  was  the  duty  of  the  officers 
of  the  Path  finder  to  demand  the  ]n'ivilege  of  the  com- 
mander of  the  cutter  C'or/r/n,  ar  1  to  make  known  to  him 
that  the  vessel  had  entered  the  jurisdictional  waters 
(if  the  United  States  in  distress.  'J'his  privileg'e  was 
not  claimed,  and  no  such  information  was  <^iven  to  the 
riiunnanding-  officer  of  the  Convi)i,  as  is  clearly  estab- 
lished by  the  testimony. 

'I  he  owners,  or  their  re))resentative,  not  having- 
iisserted  their  riglits  at  the  time  of  the  seizure,  and 
the  vessel  having-  been  seized  by  the  })ersons  repre- 
senting the  authority  of  the  United  States,  in  igno- 
i-imce  of  the  fact  that  the  vessel  had  entered  Neah  Bay 
in  distress,  no  damages  can  be  awarded. 
B  s M 


R.,  1650, 

55. 
E.,  1651, 

54. 


E.,  1652, 
26. 

E.,  1652, 
40. 


R.,  1652, 

63. 
R.,  1653, 

40. 


THE  HBNRIETTA. 

ClAIM  No.  22. 

The  Henrietta  entered  Bering-  Sea  in  September, 
1892,  in  violation  of  the  moitiis  vivendi.     On  the  Gth 
line  of    September,    Captain    Hooper,    commandinj?   tlie 
jj^g  United   States  reveiine  steamer  Conrln,  .seized  licr. 
Sei)tember  10,  Commander  Evans,  commanding-  the 
United  States  naval  force  in  Berin<?  Sea,  re])orted  to 
the  Secretary  of   the  Navy   that  the  llcniktta  had 
been  seized  and  thnt  .she  would  be  taken  to  Sitka, 
there  to  be  proceeded  against  on  a  charge  of  vio- 
lating^ the  revenue  laws  of  the  United  States;  at  tlie 
same  time  reporting-  that  he  had  made  a  declaration 
of   seizure   against   the  vessel   for  violation  of   the 
nioftiis  rirrtKti,  and  in  case  of  failure  to  condemn  tlie 
ship  for  violation  of  the  revenue  laws  "she  would  1)0 
line  turned  over  to  the  British  authorities  at  Victoria  for 

trial  under  the  modus  rivcudi.^^ 
liue     U\\  Foster,  the  Ignited  States  Secretary  of  State, 
in  a  note  dated  February  10,  185)3,  advised  Sir  Julian 
Pauncefote  of  the  seizure  of  the  JleHrietfa,  and  in- 
formed him  that  she  had  l)eeii  delivered  to  the  authori- 
ties of  the  United  States  at   Sitka  on  a  charg-e  of 
violating- the  revenue  laws,  "and  in  case  of  failure  to 
condemn  her  on  a  charge  of  violating-  the  revenue 
laws,  she  was  to  be  turned  over  to  the  British  authori- 
ties at  Victoria  for  a  violation  of  the  modus  vivcndl''' 
lino  The  British  ambassador,  in  a  note  bearing-  date  Feb- 
lineTuary  15,  1893,  recpiested  that  the  Henrietta  be  de- 
livered to  the  British  authorities  as  provided  in  the 
Convention  of  1892. 

466 


THE    HENRIETTA. 


467 


ill  Septeinbev, 
i.  On  tlie  Gth 
iiinmuliiijj:  tlie 
in,  seized  lier. 
niinaiuling"  the 
ea,  i*e])(>rted  to 

Henrii'tta  hail 
aken  to  Sitka, 
:;har<:,e  of  vio- 

Stateis;  at  the 
e  a  declaration 
r>hitioii  of  the 
v>  (.'oiideiim  tlie 

"slie  would  he 

at  Victoria  for 

etarv  of  State, 
isett  Sir  Julian 
uiieffa,  and  in- 
to the  authori- 
11  a  charge  ot 
se  of  failure  to 
j»-  the  revenue 
British  autliori- 
modus  Vivendi."'  | 
rinff  date  Feb-  I 
enricfta  be  de-  f 
rovided  in  the 


Mr.  Foster  replied,  in  a  note  dated  February  21,  ^•' ^''S'^' ^'"'^ 
ls{)3,  that   he  had    recommended  to  tlie  Attorney- 
lieneral  of  the  United  States  that  the  Henricttd  f)e 
ilt'livered  to  the  proper  liritish  authorities  for  trial 
under  the  modus  rircndi. 

The  I  )epartmeiit  of  State  advised  Sir  Julian  Paunce-  ^^-jgi^ss,  line 
tote,  under  date  of  Se])tend)er  2,  1H1>3,  that  the  libel 
against  the  Jfeurirffa,  cliar<iing  her  with  violation  of 
the  revenue  law.s  of  the  United  States,  had  been  dis- 
missed, adding:  "/s  //  fJic  desire  of  ijoiir  (iocernmeiit 
Hidt  she  sh(dl  remain  in  eluircje  of  her  captain,  or  that 
the  United  States  shall  send  her  to  Victoria  f' 

The   British    ambassador  re]»lie<l  to    this  note  as '^j  *^^^' ^'"^^ 
till  lows: 

Newport,  September  20, 18!>3. 

Sir:  I  did  not  fail  to  transniit  to  the  Earl  of  Kosebery 
tlie  iiKiuiry  whicb  you  addressee!  to  me  by  telegraui  on  the 
lM  inatiiiit,  as  to  whether  it  is  the  desire  of  my  Government 
tliat  the  Henrietta  should  reinain  in  charge  of  her  ca])tain  or 
tliat  the  United  States  should  send  her  to  Victoria.  I  have 
now  the  honor  to  inform  you  that  in  reply  to  the  above 
iii(|uiry,  Lord  Kosebery  has  instructed  me  to  request  that 
rlic  Henrietta  may  o^  sent  to  Victoria  under  the  exact  terms 
111'  the  modus  vivendi,  or  be  left  in  clianje  of  her  captain  at  the 
iiptioH  of  !/our  Government. 

On  the  23d  of  October  instructions  were  sent  by 
the    l>ei)artment  of    Justice   of    the    United    States  H.,  1659,  line 

lirecting  the    United  States   marshal   at   Sitka   "  to     ^' 

notify  the   ca])tain  of  the  Ifenrietfa   that  the  vessel 

was  released  and  subject  to   his  absolute  disposal;" ^-^q^^^' ^® 

iiid  thereafter  the  Department  of  State  ad(b*essed  the 
tnllowing  note  to  the  Hritish  ambassador: 

I  have  the  honor  to  transmit  herewith  for  the  information 
111  Her  INIajesty's  Government,  in  connection  with  previous 
ei  espondeuvje,  a  copy  of  a  letter  from  the  honorable  the 
Attorney-General  of  the  18th  instant,  showing  that  the 
Si  iiooner  Henrietta,  with  her  boats,  tackle,  apparel,  furniture, 
Hid  cargo,  was,  on  November  23, 1893,  turnetJ  over  to  the  cap- 
in  in  of  the  vessel,  who  gave  kin  receipt  therefor. 


488 


THE   HKNKIETTA. 


13. 


K.,  1663, 
8. 


R.,  1663, 

48. 


E.,  1663, 
56. 


R.,  1677, 
26. 


line      C{>])taiii    Piiiokiiey,  examined   «ni   behalf"    of    tlie 
claimants,  testiiied: 

Q.  When  was  she  actually  delivered  to  vou? 
A.  I  think  it  was  the  L'3d  of  November,  18U3. 

'^riie  (Government  of  the  United  States  admits  its 
liability  for  the  detention  of  the  Hvtirk'tta  from  the  (!di 
day  of  Sei)teml)er,  1H!)2,  until  the  23d  day  of  No- 
vendjer,  lsy8. 
line  Ca|)tain  Pinckney,  called  on  behalf  of  the  claim- 
ants, said: 

i).  \}o  you  remember  what  time  yon  arrived  at  Sitka? 
A.  I  think  it  was  the  L'Oth  of  September. 
Q.  Did  yon  remain  with  the  schooner? 
A.  Well,  I  stopped  on  her  a  day,  and  then  I  went  ashore. 
Q.  As  far  as  you  were  concerned,  you  were  not  interfered  j 
with  in  that  respect? 
A.  No,  sir. 

Q.  How  long  did  you  remain  in  Sitka? 
A.  1  think  that  I  remained  there  two  days. 
Q.  And  then  what  happened  ? 
A.  Then  I  went  to  Victoria. 

'^I'he  statejnent  is  made  in  the  ArjL»'innent  on  behalf  | 
of  Great  Britain  that  when  the  mastei-  left  Sitka  the 
^^"^crew  Avere  in  jail.     The  cajitain  testiiied: 

Q.  Was  it  in  the  Jury  room  \ 

A.  1  do  not  know.    It  was  not  in  the  jury  room.    I  think 
it  was  in  the  anteroom  where  the  keeper  stopped, 
line     Q.  \v  ij^  it  the  Jirst  time  you  saw  them  there? 

A.  Yef,  sir;  I  think  they  were  put  in  that  day  to  prevent 
them  from  going  away  on  the  steamer. 

^i"^     Ca'ser  Doring,  one  of  the  crew  of  the  Henrietta, 
testiiied  on  direct  examination: 

Q.  After  you  arrived  at  Sitka  were  you  detained  there? 
A.  We  were. 
Q.  How  many  of  you? 
A.  Six  of  us. 

Q.   Were  you  put  in  the  sherif's  o;ffivef 
A.  3't'S,  sir. 
■  Q.  For  what  length  of  time? 
A.  For  about  three  hours,  I  should  say. 
Q.  Whatfot? 


THE    HENRIETTA. 


469 


behalf    of    tlic 

(HI  f 

I8i»3. 

ates  admits  its 
tt((  from  the  (Itli 
3(1  (lay  of  N(»- 

f  of  the  claiiii- 
v&Ci  at  Sitka? 


m  I  went  ashore, 
ire  not  interfered 


,'8. 


meiit  on  behalf 
left  Sitka  the 
ed: 

y  room.    I  think 

jpped. 

ere? 

it  day  to  prevent 

the  Henrietta, 
letained  there? 


A.  We  had  arranjjed  for  our  paasajjje  in  the  ConitUlmn. 
When  she  was  ready  to  jjo  the  sheriff  came  on  board  and 
took  us  in  there  and  kep  ^  us  there. 

ih  What  did  he  tell  you  ? 

A.  He  told  us  that  he  would  keep  us  there  until  the  boat 
went  away. 

The  master  of  the  vessel  left  for  Victoria  two  (lavs®'i^|'^i°®" 
iitter  his  arrival  at  hitka,  and  thinks  that  it  cost  hiin    r.,  i664, 
about  8.')0  to  g-o  (hnvn.     "About  a  thdlar  or  two,  I    1'°«»3,13. 
think,  would  cover  my  ex})en8es  at  Sitka  before  leav- 
iii{jf  for  Victoria," 

He  remained  in  Victoria  until  July,  1S93,  when  he 
returned  to  Sitka,  remaining-  there  until  the  delivery 
of  the  vessel  on  the  23d  day  of  November. 

There  is  no  testinnniy  in  the  Record  that  Caiitain 
Pinckney  w.is  emjdoyed  by  the  owners  of  tiie  vessel, 
and  there  is  the  positive  testimony  that  he  was  not 
paid  for  services  during  the  time  that  the  vessel  was  in 
tlie  custody  of  the  United  States  authorities.  There 
is  no  testimony  that  he  was  not  emidoyed  for  other 
I  purposes  at  Victoria  in  the  interim,  but  he  asks  the 
(lovernment  of  the  United  States  to  pay  8600  for  his 
hoard  at  Victoria,  when  he  was  not  engaged  in  cou- 
iH'cti<m  with  the  seizure  of  the  Henrietta  and  might 
have  been  em})loyed  elsewhere. 

(J.  Did  you  pay  for  your  board  in  Victoria  ?  Did  you  incur 
my  expense  in  Victoria  in  the  meantime? 

A.  I  think  it  cost  me  about  *()(K)  from  the  time  I  got  down 
until  the  time  I  arrived  up  here  again?  .     . 

Q.  How  w(mld  the  $r»()0  be  made  up? 

A.  Well,  board  mid  lodging. 

Q.  Includinf;'  your  passage  money  ? 

A.  Xo,  sir;  outside  of  the  passage  money. 

The  United  States  denies  its  liability  for  the  sup- 
port and  maintenance  of  the  captain  of  the  Henrietta 
while  he  was  at  Victoria. 

Captain  Pinckney  testified  that  the  cost  of  returning  ^-^l^^' '*°®" 
to  Sitka  from  Victoria  was  850,  and  that  he  incurrecl 
^!48  for  personal  ex))eiises  at  Sitka  bef<ire  leaving 
with  the  Henrietta  for  Victoria, 


lli:^:^  :,: 


470 


THE    HENRIETTA. 


K.J  I6(i»,  line      TestitViim'  relative  to  tlie  coiulitioii  ui'  the  UcnrkUn 
when  he  took  charjie  of  her: 

i}.  Ill  what  condition  was  the  vessel  when  you  took  charge 
of  her? 

A.  Well,  she  was  looking  ju-etty  well  bleached.  Iler  vijj. 
ginK  had  been  lying  on  her,  and  tiie  rain  and  frost  put  it  in 
bad  condition. 

<^  Did  you  have  her  repaired  before  sailing? 

A.  No,  sir;  but  1  had  to  get  a  new  foresail  for  her  and  a 
lot  of  running  gear. 
R.,  1667,  line     <J.  In  what  condition  was  the  vessel  when  yon  got  her 


25. 


E.,  1670,  line 
63. 


delivered  back  to  you? 

A.  Well,  siie  was  a  little  wormed. 

(^.  To  what  extent  / 

A.  Well,  1  can  hardly  tell  to  what  extent.  Just  below  the 
watermark  there  were  a  good  many  worm  holes  in  her  where 
the  boat  had  chafed  the  i)aint  otf. 

(J.  Had  she  been  taken  care  of  in  the  meanwhile? 

A.  Xotliin;/  more  tlidit  the  aliip  hecjur  on  hoard. 

Q.  Had  she  been  copjier  painted? 

A.  No,  sir;  and  her  centerlioard  was  badly  damaged. 

Q.  How  was  it  damaged? 

A,  Well,  there  was  some  of  the  iron  strapping  very  bad. 
I  Ibund  when  I  took  charge  of  her  that  the  chain  that  hauled 
the  centerboard  up  was  broken. 

Q.  Was  it  broken  or  damaged  at  the  time  of  the  seizure? 

A.  No,  sir. 

(}.  And  the  gear  was  out  of  order  ? 

A.  The  running  gear  was  quite  rotten. 

Q.  In  what  condition  were  the  sails? 

A.  The  iH'incipal  sails  were  all  right,  but  there  was  the 
main  toi)mast  staysail  which  had  been  left  down  iu  the  hold, 
and  was  all  mildewed  and  rotten. 

On  eross-exaniinatlcni  the  witness  testified: 

i).  The  Henrietta  had  been  lying  there  in  the  water  at 
anchor  ? 

A.  Yes,  sir. 

Q.  And  as  siie  lay  there,  she  was  not  beached  at  all? 

A.  No,  sir;  when  I  took  charge  of  her  I  put  her  on  the 
beach  to  clean  her  bottom. 

(^  In  Sitka? 

A.  Yes,  sir. 

Q.  And  you  found  that  she  was  pretty  badly  worm-eaten? 

A.  Well,  yes,  sir. 

Q.  Had  you  looked  at  her  bottom  that  spring? 

A.  No,  sir;  not  at  her  bottom. 


J.  se 


THE    HENRIETTA. 


471 


of  the  Ilcnrk'ttu 


Jii  you  took  charge 

leached.    Her  rip;. 
and  frost  put  it  in 

iliu^'/ 

?sail  for  Ler  and  a 

vben  you  got  lier 


t.    Just  below  tie 
holes  ill  her  where 

eanwhile? 
hoar(L 

dly  damaged. 

rappiug  very  bad. 
chain  that  hauled 

16  of  the  seizure? 


but  there  was  the 
,  down  in  the  hold, 

estiiied: 

e  in  the  water  at 


lached  at  all? 
I  put  her  on  the 


)adly  worm-eateu? 
priug  ? 


Q.  I  mean  the  spring  of  1892;  had  her  bottom  be  m  exam- 
ined? 

A.  No,  sir;  I  did  not  look  at  her  bottom,  but  I  had  her 
beached  in  Tonki  Bay,  and  1  looked  at  her  bottom  there. 

Q.  In  the  summer  or  fall  of  1892? 

A.  Summer. 

Q.  Did  you  observe  any  worm  holes  in  her  ther  ,' 

A.  No,  sir. 

(I.  Then  it  is  true  that  in  these  waters  there  is  danger  from 
the  worm?  ..  ,  .      . 

A.  Yes,  sir. 

Q.  It  is  very  well  recognized  as  a  very  serious  menace  to 
sliips,  is  it  not? 

A.  Yes,  sir;  the  Pacific  Ocean  is  pretty  bad  for  worms. 

Q.  Not  any  more  in  IJering  Sea  than  it  is  about  here,  is  it? 

A.  Not  as  [  am  aware  of. 

(I.  Now,  Captain,  you  have  spoken  about  the  injury  to  the 
ccnterboardand  the  main  topmast  staysail  as  mildewed.  Now, 
in  what  other  respect  than  ypu  have  related  was  the  Henri- 
I  tin  injured? 

A.  Well,  of  course,  the  vessel  lying  up  there  in  the  rain 
and  wet  and  frost  and  snow,  generally  the  ironwork  gets 
bad,  and  the  decks  get  bleached,  and  rusts  the  ironwork. 

i}.  Well,  what  was  the  sail  that  was  lost,  mildewed,  or 
injured,  worth  ? 

A.  Well,  1  do  not  know  exactly  the  cost  when  it  was  new, 
1  am  sure. 

i}.  Was  it  new  the  year  when  you  sailed  out  of  Victoria? 

A.  No,  sir;  1  think  not.     It  had  been  used  a  little,  I  think. 

(i^.  About  what  was  it  worth  ? 

A.  Well,  I  could  not  tell.  I  do  not  know  how  many  yards 
there  were  in  it. 

Q.  And  the  ceuterboard ;  how  much  would  it  have  taken  to 
put  that  in  repair? 

A.  Well,  I  should  think  it  would  have  taken  probably 
about $15. 

(J.  Now,  you  had  been  out  for  the  entire  season  of  1892, 
sailing  in  March,  I  think,  did  you  not,  for  the  coast  catch? 

A.  Yes,  sir. 

Q.  And  you  were  seized  about  the  4th  of  September,  and 
you  were  on  your  way  home;  you  had  had  about  your  full 
season's  voyage? 

A.  Yes,  sir;  I  was  working  my  way  home. 

Q.  Now,  the  Henrietta  had  the  wear  and  tear  of  that  voy- 
age at  the  time  of  the  seizure  ? 

A.  Y'es,  sir. 

Q.  What  do  you  think  it  would  have  taken  at  the  time 
tliat  you  got  possession  of  the  vessel  again  to  put  her  in  as 


472 


THE   HENRIETTA. 


good  ri'iMiir  iih  .she  was  wIumi  you  tiuisbed  the  vovage  in  Sep- 
teiuber,  IHKli? 

A.  That  is,  the  hull? 

Q.  Ye8;  tlic  ship,  'riiocontuihoiird  fixed  and  the  daiiiage 
to  the  sail  that  was  niihlewed;  put  her  in  tlie  san>e  condi- 
tion as  she  was  M'hen  you  startec'  for  home  on  the  0th  of 
September,  l.S!)L'? 

A.  Of  course  there  was  a  good  deal  of  wear  and  tear  to 
her  sails  coming  down. 

Q.  Yes,  but  what  was  lh<?  actual  wear  and  tear  to  her 

sails  during  the  voyage  of  1891;" — the  ordinary  voyage  f    ]Vhat 

iroitld  it  hare  iii'<en  to  hare  pi't  Iter  in  an  yood  a  vondition  as 

she  wan  in  l^sff:*  when  yon  were  about  to  leave  the  tthifif 

R.  1672,  line     ■^'  '  should  aay  altout  SUf;  that  in,  to  put  npairn  on  her 

1.  except  the  irorms. 

Q.  lion-  miifh,  in  round  Jiames,  do  i/ou  think  the  injury  to 
the  rensel  ican,  or  what  would  it  have  cost  to  have  put  the  ressel 
in  ait  (jood  repair  altof/ether,  captain f 

A.  J  think  probably  about  S^OO;  that  is,  the  hull,  unless 
the  planks  had  been  worn  so  bad  that  they  had  to  be  taken 
out;  then  it  would  cost  more. 
R.,  1679,  lino     (^.  When  you  examined  the  skins,  to  what  extent  were 
62.  they  injured,  of  the  30(»  or  4(K>  that  were  in  there? 

A.  Well,  I  do  not  know,  but  in  my  mind  1  think  it  would 
be  about  $.'i,  or  something  like  that. 

Q.  Three  dollars  for  what  i 

A.  Three  dollars  per  skin. 

R.,  1661,  line      He  says  that  the  420  seal  skins  seized  were  deHvered 

R.^%65  line^^'^*^'^  ^'*  \\\n^,  but  that  tliey  were  (hnuaoed.     lie  dis- 

10.  posed  of  lof)  of  tlie  skins  at  Sitka.     Kij^ht  ••uns  and 

a  riHe,  taken  from  the  vessel  l)y  tlie  authorities,  were 

R.,  1666,  line  returned  to  him  "more  or  less  damajfed."    The  Indians 

^^'  kept  their  canoes,  and  the  boats  were  returned  to  the 

vessel  "very  much  l)roken  and  the  bottoms  all  eaten 

out  with  worms." 

The  Arjiiunent  on  behalf  of  Great  Britain  charfi-es 
Ex.  108    G.  iif^^.^s  .^^  shown  by  Kxhibit  S,  i)a<'-i.  108,  s<)13.(i()." 

22,  Exiiib- hixannnni<^"  tins  exlnhit,  it  will  a})j)ear  that   almost 

Its,  p.  282.  (3^  ^^j.y  {jvticle,  with  the  excei)tioii  of  t!ie  jn'ovisions, 

are  articles  that  were  undoubtedly  returned  to  the 

vessel,  such  as  coin))nsses,  saws,  bits,  knives,  water 

casks,  etc.     In  that  exhibit  the  charge  is  made  also 


THH    IIKNRIKTTA. 


478 


levoyajreinSep-  ■(;„.   "tln'et^   iMnits,   two  ot'    them    new,    s-j.'jo."     The 


and  the  damage 

tliu  same  coimIj- 

ue  on  tlie  (ith  of 

wear  and  tear  to 

and  tear  to  her 
y  voyatre  ?  What 
^od  a  voniHtion  as 

the  Hhiftf 
»t  lepairn  on  Iter 

tink  the  injury  to 
Hite  put  the  rennel 

the  bull,  unless 
liad  to  be  taken 

rliat  extent  were 
there  ? 
I  think  it  would 


were  deliveivd 
ii<iV(l.  He  dis- 
Cijii-lit  <i'uiis  and 
ithorities,  wore 
"  The  Indians 
returned  to  the 
ttouKs  all  eaten 

Britain  char<ie8 
108,  sjdS.do." 
ir  that  almost 
the  provisions, 
'turned  to  the 
,  knives,  water 
Q  is  made  also 


schedule  in  the  Ar;^iiment  re|)eats  the  item  enlarged, 
•Three    boats,  destmveil   l)v   woi"ms,   at    ^^Ho  each,  H.,  lotso, lint- 
^■J^5."     The  Ifnifirfffi  carried  hut  three  l»oats. 

'I'he  demands  of  this  (daimant  are  so  <ii-(>ssl\-  exor- 
bitant, so  al)solutelv  without  foundation  in  the  Record, 
iiiul  so  unusual  tliat  a  detailed  discussion  cd"  e.'jh 
item  is  considered  unnecessary.  '^I'he  llijih  Commis- 
sioners,  u])ou  "i-pectiufi-  the  schedule,  will  find  that 
the  ilhi^tnition  of  the  double  char<ie  foi*  the  l»oat>. 
|>ractieally  represents  the  method  in  which  the  entire 
schedule  is  nnule  uj).  Two  items  for  le{«al  exjx'nses, 
as  follows,  are  contained  in  the  schedule:  "  Lej^al 
expenses  at  Sitka,  8ir2.r)(),"  " Helyea's  hill, /r  proceed- 
ings at  Sitka,  ><118."  Those  items  are  supported  by 
tiie  Record,  and  inasunu'h  as  the  money  was  expended 
in  behalf  of  the  owner  in  protecting-  his  schooner 
aj^ainst  the  charge  cd"  violating'  the  revenue  laws  of 
the  United  States,  from  which  she  was  subse([uently 
released,  the  Government  of  the  Unite<l  States  desires 
to  re})ay  the  clainunit  the  ann»unt.  The  further  item, 
liowever,  "Belyifi's  charge,  >^(!0(),"  is  based  upon  the 
ttdlowinjr  testinumv: 

().  Had  you  any  other  agreement  with  Mr.  Si)ring  as  to  any  U.,  1738,  line 
other  charges  ?  52. 

A.  Yea;  in  thefall  of  ISO.'J.  At  the  time  it  was  not  known 
whether  tlie  vessel  would  be  back  or  what  would  be  the  re- 
sult of  the  case.  There  was  some  talk  of  appcalitig  from  the 
ih'v'mon  of  the  court  at  Sitka,  and  a  lump  sum  of  $000  was 
agreed  to  as  the  cost  with  respect  to  the  claim.  This  was  to 
prepare  the  claim  and  get  it  in  and  look  afte.  it  until  it  was 
settled. 

Inasnuich  as  no  decree  was  ever  entered,  and  f '^n- 
secpiently  no  ap})eal  ever  taken  from  Sitka,  and  as 
there  is  no  testimony  that  ^fr.  Belyea  had  any  con- 
nection wdiatever  with  obtainini>-  the  vessel  for  the 
owner — but  on  the  contrary  the  diplomatic  corre- 
sp'jndence  already  cited  shows  that  the  vessel  was 


474 


THE    HENKIETTA. 


51. 


released  by  order  of  the  l)ei)artnieiit  of  State  of  the 
United  States — the  chiini  for  this  item,  whicli  was 
based  upon  services  to  be  performed  in  connection 
witli  the  appeal,  ^^'hen  a  claim  for  apjjeal  .even  was 
never  filed,  is  without  foundatimi  in  fact. 

The  item  "Ex})ense8  at  Victoria,  8()0(),"  has  been 
mentioned. 

The  claims  "Loss  of  time,  waiting-  delivery  of  ves- 
sel at  8100  a  month,  >S700;  hardslii})s  suffered  by 
master,  8500,"  and  almost  every  item  thereafter  until 
the  end  of  the  schedule  are  demands  absolutely  Avitli- 
out  foundation  in  the  testimony.  They  are,  more- 
over, })ersonal  claims  of  the  })ersons  named,  and  are 
therefore  not  within  the  jiu'isdic.tion  of  this  High 
Commission. 

Concerning'  the  item  "  Personal  ex})enses  and  trouble 
of  Charles  Sju'ing-,  8500,"  Sj)ring'  testified: 

E.,  1735,  line  Q.  The  time  that  you  8i)eiit  here  that  you  refer  to  was  spent 
in  preparing  a  claim  against  the  United  States  for  the  seizure 
and  detention  of  the  Henrietta  '! 

A.  It  was  more  particuhirly  to  collect  evidence,  I  think  it 
was. 

Q.  For  a  claim  against  the  United  States? 

A.  Yes. 

Q.  Had  it  anything  to  do  with  the  defense  of  the  suit  at 
Sitka? 

A.  No. 

Q.  What  time  you  spent  bere  was  in  collecting  evidence 
with  Mr.  Jielyea  to  present  the  claim  to  your  Government  to 
be  recovered  against  the  United  States  for  seizure? 

A.  Yes;  I  think  that  would  be  about  right. 

The  item  "105  skins  sold  at  Sitka,  815  a  skin,"  does 
not  take  into  consideration  the  fact  that  the  ca))tain 
R.,1665,  liiie  testifies  that  he  obtained  8525.15  for  these  skins  at 
Sitka;  nor  the  fact  that  in  the  Argument,  page  85,  line 
50,  the  .statement  is  made  "in  1S92  skins  were  worth 
814." 

The  claim  of  82,000  for  de])reciation  in  the  value 
of  the  vessel  rests  upon  no  testimony  whatever  save 
ihat  of  the  captain,  where  he  says  that  it  would  have 


21. 


ise  of  the  suit  at 


THE    HENRIETTA. 


cost  >S2()0  to  re})aii'  her.     Si)riiig',  the  owner  of  seven- 
eighths  of  the  vessel,  testified: 

Q.  You  saw  the  Henrietta  afterwards,  did  you  not? 
A.  No,  I  don't  think  I  ever  seen  her  here  since  she  went 
away. 

Fell,  the  owner  of  one-eig-hth  of  the  vessel,  testified 
that  when  she  arrived  in  Victoria  he  was  absent,  and 
that  he  did  not  see  her  until  the  22d  or  26th  of  March. 
He  knew  nothing-  of  what  care  had  been  given  the 
vessel  in  the  meantime,  and  inasmuch  as  the  owners 
were  (quarreling  with  the  ca])tain,  as  is  shown  by  the 
testimony,  some  presumption  might  arise  regarding 
Ihis. 

Q.  Did  you  ever  own  any  other  vessel  ? 
A.  Yes. 

Q.  What  others? 

A.  Only  two  small  vessels — sloops. 
Q.  What  do  you  mean  by  a  small  vessel? 
A.  A  vessel  of  eight  or  nine  tons. 
Q.  Below  the  register  here,  1  suppose? 
A.  Yes,  below  '^he  register. 

Q.  Did  you  ever  own  a  registered  vessel  before,  or  own  an 
interest  in  one? 
A.  No. 

He  testified  that  the  vessel  was  not  hauled  up  on 
the  beach  to  have  her  examined,  and  lie  evidently 
knew  nothing  about  the  condition  of  the  vessel  except 
that  she  was  lealimg  a  little  and  that  her  sails  and 
roj)es  were  worn.  He  did  not  know  whethei'  the 
leakage  was  about  the  centerboard  or  not.  If  it  was 
it  could  have  been  rej)aired  at  n  nominal  ex])ense. 

This  witness  testifies  regarding  a  sale  which  is  cited 
in  the  Argument  on  behalf  of  Great  liritain.  A  read- 
ing of  his  testimony  will  show  what  weight  should 
ho  attached  to  that  ofi'er. 

The  slKiriff  subsequently  seized  the  Henrietta  under 
an  execution  directed  against  Mr.  Spring  for  a  debt 
not  contracted  in  connection  with  the  Henrietta,  and 
Mr.  Fell  testified  that  they  did  not   have  time  to 


475 


R.,  1730,  line 
17. 


R.,  1741,  lines 
40, 37. 


R.,  1743,  line 
49. 


R.,  1742,  line 

53, 
R.,1741,  line 

50. 


R.,1744,  line 
50. 


R.,  1745,  line 
40. 


47i; 


THE    HENRIETTA. 


endeavor  to  sell  the  vessel  before  the  sheriff  had  her. 
There  is  no  testimony  that  the  vessel  was  free  of  liens 
when  the  sheriff'  sold  her,  and  the  sum  realized  at  that 
sale,  as  said  by  the  High  Commissioner  on  the  part 
of  the  United  States,  goes  a  very  little  way  in  estab- 
lishing- the  value  of  the  ship. 
R.,  1747,  line  The  Government  of  the  United  States  is  liable  for 
the  fair  charter  value  of  the  Henrietta  from  the  6th  of 
September,  1892,  until  the  23d  of  November,  1803, 
together  with  such  losses  as  the  owner  actually  sus- 
tained. The  boats  were  undoubtedly  damaged,  legal 
expenses  were  incurred  at  Sitka,  and  the  value  of  the 
skins  depreciated. 


the  oscar  and  hattie. 
'  Claim  No.  23. 

The  Oscar  and  Hattie  was  seized  by  a  revenue  cut- 
ter in  the  service  of  the  United  States  in  the  harbor  ^•^^^^'  ^'°® 
I  of  Attn  Island  on  the  30th  day  of  August,  1892,  for  a 
viohition  of  the  convention  signed  on  the  18th  daj^  of 
April,  18J(2,  between  the  United  States  and  Great 
I  Britain  for  the  renewal  of  the  ^^/or/^fSi'm'Wf// of  1891. 
Attn  Island  is  the  most  westerh'  of  the  Aleutian 
Islands,  and  the  harbor  in  which  the  Oscar  and  Hoffie 
was  seized  is  in  Bering  Sea.     The  seizure  was  made  ^  Igo \ine57! 
lb}'  the  United  States  revenue  cutter  Mohican. 
Article  3  of  the  itiodas  rirciidi  of  18J>2  provided: 

Every  vessel  or  person  offending  a}>ainst  tbis  prohibition 
I  in  the  said  waters  of  Bering  Sea,  outside  of  the  ordinary 
territorial  dmits  of  the  United  States,  may  be  seized  and 
detained  by  the  naval  or  other  duly  commissioned  officers  of 
either  of  the  high  contractting  parties,  but  they  shall  be 
handed  over  as  soon  as  practicable  to  the  authorities  of  the 
nation  to  which  they  respectively  belong,  who  shall  alone 
liave  Jurisdiction  to  try  the  offense  and  impose  the  penalties 
for  the  same.  The  iritnenses  and  proofs  necessary  to  establish 
\the  offense  shall  also  be  sent  with  them. 

This  article  is  the  same  as  Article  3  of  the  modus 
Irivoidiof  1891. 

Parliament  enacted  in  1891  the  "  Seal-fishery  Act,  ^^*^J  ^f' 
11891."  ■  -■•-•' 

That  act  ju-ovided  that  Her  Majesty,  the  Queen 

I  might,  by  order  in  council,  prohibit  the  catching  of 

seals  by  liritish  shi}is  in  Bering  Sea,  or  such  part 

thereof  as  was  defined  by  the  said  order  during  the 

h)oriod  limited  by  ''le  order;  and  "if  a  British  ship  is 

477 


23;        Ex- 
hibits 263. 


478 


THE    OSCAR   AND    HATTIE. 


found  \vitlnn  lierinji'  Sea,  havinu  on  hoard  thereof  fish- 
imj  or  shooihuj  hiij/loneufs  or  seal  skitis  or  bodies  of  seals, 
It  shall  lie  on  the  owner  or  master  of  such  ship  to  prove 
that  the  ship  was  not  used  or  employed  in  contravention 
of  this  aety 
R.^io34,  Hue      ^j^  order  in  comicil,  dated  "at  the  Courtof  Wind- 
E.,  1534,  line  8or,  Dtli  day  of  May,  18W2,"  was  made,  and  instruc- 
^^"  tions  were  issued  to  British  cruisers  necessary  to  en- 

force the  provisions  of  the  ntodus  rirendi  of  18JI2. 
Exhibit    89,      The  President  of  the  United  States,  actiu"- throuuh 
23-       Ex- the  Secretary  of  the  Navy,  issued  to  tlie  commanding 
hibits  262.  officer  of  tlu   uaval  force  in  lierin^  Sea  instnictions 
for  tlie  enforcement  of  the  terms  of  the  modus  of  1892. 
Parajjiraph  2  of  tlie  instructions  reads: 

Any  vessel  found  to  be  or  to  have  been  employed  in  sealing 
within  the  prohibited  waters  of  Bering  Sea,  whether  with  or 
without  warning,  and  any  venscl  found  therein,  whether  u-arneil 
or  not,  having  on  board  impleinentsfor  taking  seals  or  seal  skins 
or  bodies  of  seals,  tcill  be  seized. 

Exhibits,      At  the  time  of  the  seizure  of  the  Oscar  and  Hattie, 
227,iineii.  y]jj3  |j.,j  ^^^  hoard  sliootiug'  imjdements  and  seal  skins, 
and  she  was  in  Bering-  Sea. 

(J.  When  you  were  seized  in  Gotzleb  Harbor  you  had  all  i 
your  sealing  eciuipnient  on  board,  hadn't  you — your  guns  and 
all  the  necessary  appliances  for  sealing — on  board  of  the] 
vessel ? 

A.  On  board  the  schooner?  -         _ 

Q.  On  board  the  schooner. 

A.  They  were  tliere,  sure. 

Q.  And  you  had  certain  seal  skins  on  board  J 

A.  Yes,  sir;  but  they  were  not  caught  in  the  Bering  Sea.  j 

Parafi'raph  3  of  tlie  modus  rirendi  of  18!)2,  which 
is  (pioted  above,  ])rovides  that  every  vessel  otiendiufij 
against  the  ])rohil)ition  of  .sealing- in  the  waters  of  Ber- 
ing- Sea,  slumld  be  seized  and  detained  by  the  officer 
of  either  Government.  The  construction  placed  upon  I 
article  3  by  both  Governments  has  been  shown  by 
the  extracts  from  the  Seal-fishery  Act  of  1891  and  the 
instructions  issued  in  accordance  with  the  orders  of 
the  President  of  the  United  States.     That  construe- 


THE    OSCAR   AND    HATTIE. 


479 


jtion  was  that  it'  a  Britisli  ship  .should  be  found  witliiii 
IJcn'ilig'  Sea  having-  on  board  thereof  fishing-  or  shooting- 
implements,  or  seal  skins,  or  bodies  of  seals,  it  should 
Hie  on  the  owner  or  master  of  such  ship  to  prove  that 
Itlie  ship  was  not  used  or  emj^loyed  in  contravention 
iof  the  Convention;  and  any  vessel  found  havino-  on 
hoard  implements  for  taking-  seal  or  seal  skins,  or 
jhodies  of  seals,  was  to  be  seized. 

The  cai)tain  of  the  United  States  revenue  cutter 
}[()hican,  finding-  the    Oscar  and  Hatfie   within    the 
waters  from  which  she  was  excluded  by  the  Conven- 
tion, having  on  board  im])lements  for  taking  seals, 
|\vhich  constituted  reasonable  cause  for  seizure  as  pro- 
hided  in  the  instructions  issued  by  the  Secretary  of 
jtlie  N'avy,  and  by  the  Seal-fishery  Act  of  181)1,  and^^l^lji^its, 
lici    ng-  on  board  also  bodies  t)f  seals,  which  placed 
|itu      e  owner  of  the  ship  the  0)uis  of  proving  that  the 
ship  was  not  used  in  contravention  of  the  modus,  as 
[iiovided  in  the  Seal-fishery  Act  of  18!)  1,  seized  the 
iM'hooner  on  the  30th  of  August,  and  on  the  1st  day  ^' .^./,"  ^'jj^^ 
of  Se])tember  took  the  Aessel  in  tow  to  Unalaska,    Jio.l'O;  Kx- 
licaching  there  on  the  otli  of  Se])tend)er.  linear:.""'' 

Commander  Evans,  of  the    Yorldowu,  was  in  the  Exhibits, 
harbor  o+"  TJnalaska.  222,iine54. 

(J.  Yea,  and  what  did  the  Yorktown  commander — what  did 
he  do? 

A.  He  told  me  to  stop  over  until  the  Melpomene  came  along 
and  he  would  turn  me  over  to  the  Melpomene. 

(}.  That  is  Her  Majesty's  ship? 

A.  Yes,  sir;  that  is  Her  Majesty's  shii). 

(}.    Well,  in  about  ten  days  you  tvere  ordered  by  6Vfj>f«m  Exhibits, 
Parr,  of  the  Melpomene,  to  proceed  to  Victo'  >a?  223,  line  14. 

A.   Yen,  sir. 

().  After  leaving  Captain  Parr  on  the  Melpomene,  you  pro-  K  x  hihits, 
let'ded  to  Victoria  under  his  orders,  did  you  not?  223,line54. 

A.  Yes,  sir. 

(}.  And  reported   there  to  the  admiral  at    Esquimault 
Hiu-bor? 

A.  I  reported  to  the  collector  of  customs, 

(J.  And  your  ship  was  then  taken  in  charged 

A.  Yes,  sir. 


480  THE  OSCAR  AND  HATTIE. 

Q.  At  any  rate,  you  left  her  with  the  collector  of  customs? 
A.  I  left  her  with  the  collector  of  customs,  with  a  ■watch- 
man on  board  of  her. 

The  captain  of  the  Jloli'iain,  in  accordance  witli 
para<j^rapli  3  of  the  mo(/i(>t  vlvendi  of  1S1)2,  seized  the 
Oscar  and  Hnftie,  and,  as  shown  b}'  tlie  testinionv, 
took  tlie  vessel  to  Unalaska,  and  thereafter  Com- 
mander Evans,  of  the  Yoi hfoiof, dcVixc^red  her  to  Cap- 
tain Parr,  of  Her  Majesty's  navy,  connnanding  the 
3I('Jpoi)H'iic\  and  representing-  in  liering  Sea  "  tlie 
authorities  of  tlie  nation  to  which  she  belonged,  who 
ah)ne  had  jurisdiction  to  try  the  offense  and  impose 
the  penalties  for  the  same." 

The  authorities  of  Great  Britain  delivered  the  ves- 
sel to  the  nearest  British  court  to  be  tried.  That  court 
was  the  Kxchecpier  Court  of  Canada,  British  Coluni- 
*  l)ia  aibniralty  district,  and  thereafter  the  Oscar  ami 
Hatt'ie  was  regularly  tried  and  condemned  and  for- 
feitech 
Ex^  No    85,      The  judgment  of  Sir  Matthew  liaillie  Begl)ie,  of  the 

Exuibits  •'       ~  t    ~  <n         > 

241.         'Excliecpier  (*ourt  of  Caiuuhi,  is  ]n'inted  in  full.     The 

judgment  found  not  only  that  there  was  reasonable 

cause  tor  the   seizure   made  liy  the   captain  of  the 

United  States  revenue-cutter  MoJiicait,  but  found  the 

Oscar  and  Ilatfi''  f/iiiHi/  oi'  acts  in  contravention  of  the 

mo(hifi  r'ircudi  of  I.S92. 

Exh  ibits,      All  a])peal  was  taken  to  the  Supreme  Court  of  Can- 

ExLibit8,ada,  and  thereafter  the  case  came  on  to  be  heard  in 

248, line  10.  ^1,. J 1^  court,  aiid  the  judgment  of  the  lower  court  was 

set  aside  and  reversed. 

Exhibits,      In  the  oiiinion  of  the  Supreme  Court  of  Canada, 

reversing  the  lower  court,  it  was  stated  that  sufficient 

prima  facie  oroof  of  guilt  of  the  Oscar  and  Hattie  was 

undoulitedly  afforded  by  the  fact  that  the  ship  was 

found  within  the  boundaries  of  prohibited  waters, 

with  shooting  implements  and  seal  skins  onboard,  and 

that  the  onus  was  cast  ujion  the  owners  to  remove  the 

presuinjition,  but  that  the  evidence  given  in  the  court 


253,  line  3. 


THE    OSCAR   AND    HATTIE. 


481 


Bctor  of  customs? 
lis,  with  a  watch- 

Tordance  with 
SJ)2,  seized  the 
tlie  testimony, 
lereafter  Coin- 
red  her  to  Cap- 
aiinianding  the 
•ing"  Sea  ''  the 
belong-ed,  who 
ise  and  impose 

ivered  the  ves- 1 
hI     That  eonrt 
British  Cohim- 1 
the  Oscar  amU 
nmed  and  for- 

e  Regbie,  of  the 
din  full  The 
wiia  reasonaljk^ 
captain  of  the 
,  but  found  the) 
•avention  of  thej 

e  Court  of  Can- 1 

to  be  heard  inl 

ower  court  was! 

>urt  of  Canada,] 
d  that  sufficientj 
•  and  Hattie  wasi 
it  the  sliip  wasj 
•hibited  waters,  I 
lis  on  board,  andl 
s  to  remove  the! 
ven  in  the  courtl 


below  had  establislied  tliat  tlie  vessel  conunitted  no 
act  in  violation  of  the  convention  of  1.S!I2  or  inviidution 
of  lier  Majesty's  order  in  council  pursuant  to  the 
lierin^j:  Sea  fishery  act  of  1891. 

The  Oscar  anil  Ihiftlc  had  been  sold  and  the  owners 
claim  to  have  suffered  a  loss  as  the  result  <d"  the 
schooner's  sale  for  less  than  hei-  real  vahie.  The  ])i'o- 
ceeds  of  the  sale,  toji'ether  with  costs,  were  decreed 
to  the  owners. 

The  United  States  contend  that  the  captain  of  the 
i-e venue  cutter  J/o/i'/rr^y/  had  reasonable  cause  for  seiz- 
iii<^'  tlie  Oscar  and  Ilidtic.  The  construction  placed 
u[)on  the  iiiodas  rirct/di  of  1<S1)2  l)\-  both  (iovernmeiits, 
as  ccmtained  in  the  Fishery  act  of  181>l,  and  in  the 
instructions  of  the  (lovernment  of  the  United  States 
!(►  her  cutters  in  Heriiin'  Sea,  was  a  reasonable  and, 
moreover,  tlu^  controllin<i'  construction. 

The  ca])tainof  the  Mohican  found  the  vessel  within 
the  prohibited  waters,  having-  seal  skins  aboard  and 
"shootiiifi'  iiu[)iements,"  declared  to  i)e,  from  as  author- 
itative sources  as  the  Parliament  of  Great  liritain  and 
the  Executive  Department  of  the  (Tovernment  of  the 
United  States,  reasonable  j^round  for  seizure,  and 
thereuj)on,  in  the  performance  of  his  duty,  seized  the 
vessel  and  turned  her  over  to  the  "autlu.^rities  of  the 
nation  who  alone  had  jurisdiction  to  try  the  offense 
and  impose  the  })enalties  for  the  sajne." 

The  G<n^ernment  oi  Great  Britain  had,  by  Parlia- 
luentary  act,  declared  what  conditions  would  constitute 
reasonable  grounds  for  seizure,  and  one  of  her  citi- 
zens can  not  recover  damag-es  from  the  United  States 
because  the  officer  of  one  of  their  cutters,  finding  such 
evidence  constituting-  reasonable  cause  for  seizure, 
perfonned  his  duty. 

The  cruisers  of  each  nation  in  leering  Sea,  under 
the  terms  of  the  modus  vivendi,  represented  the  sover- 
eign })ower,  not  only  of  the  country  whose  flag  they 
flew,  but  also  of  the  other  nation  })arty  to  the  Con- 
B  s 31 


482  THE   OSCAR   AND    HATTIE. 

veiitioii,  for  each  luul  iiutli<n*ity  t«>  seize  ships  of  both 
nations.  Tlie  cutter  of  the  United  States  acted  uj)oii 
the  "rounds  dechired  to  l)e  reasonaljle  h\  (ireat  Hrit- 
ain,  and  a  citizen  owin<«'  allegiance  to  Her  Majesty's 
Government  can  not  recover  <lania«>es  from  the  United 
States. 

The  final  clause  of  article  3  of  the  modus  vivendi 
provides: 

The  witnesses  and  proofs  necessary  to  establish  the  ottense 
shall  also  be  sent  with  them. 

Captain  Parr,  representing  in  the  waters  of  the 
Bering  Sea  the  sovereign  power  of  Great  Hritain,  wjis 
in  possession  of  all  the  proofs  and  in  (u>mmunication 
with  all  the  witnesses  who  were  assembled  in  the 
harbor  at  Unalaska,  and  had  he  not  decided  to  order 
the  Oscar  and  Hattie  to  Victoria,  the  vessel  would 
have  been  released.  The  cruiser  of  the  United  States 
had  no  further  control  or  power  over  the  vessel  after 
her  surrender  to  the  authorities  of  the  nation  "  liavhig 
jurisdiction  to  trj-  the  offense  and  impose  the  penal- 
ties," and  without  the  decision  of  the  commander  of 
Her  Majesty's  fleet  in  Bering  Sea,  the  Oscar  and 
Hattie  would  not  have  been  condemned  and  forfeited. 
The  commanding  oflicer  of  the  Melpomene  having 
ordered  the  schooner  to  Victoria  for  trial,  the  owners, 
who  are  citizens  of  Great  Britain,  can  not  recover 
damages  from  the  United  States  arising  by  reason  of 
his  act. 

The  courts  of  Great  Britain  found  that  there  ex- 
isted reasonable  cause  for  the  seizure  and  the  lower 
court  found  that  there  existed  adequate  cause  for  her 
condemnation  and  forfeiture.  The  higher  court  re- 
versed the  finding  of  the  trial  court  only  upon  the 
question  of  the  existence  of  adequate  cause  for  con- 
demnation. 

Reasonable  cause  for  the  seizure  being'  established, 
the  United  States  are  not  liable  for  the  loss  to  the 


.ships  of  both 
tes  {Kited  upon 
b^'  Great  l^rit- 
ier  Majesty's 
[)iu  the  United 

modus  Vivendi 
blish  the  ott'ense 

waters  of  tlie 
it  liritain,  was 
oiiHniinicatiou 
(inbled  in  the 
•ided  to  order 
vessel  would 
United  States 
le  vessel  after 
ition  "having 
)se  the  penal- 
3oniraander  of 
he  Oscar  and 
and  forfeited. 
omene  having 
il,  the  owners, 
1  not  recover 
•  by  reason  of 

hat  there  ex- 
nd  the  lower 
cause  for  her 
her  court  re- 
nly  upon  tlie 
luse  for  con- 
s' established, 
B  loss  to  the 


THE    OSCAR    AND    HATTIE. 

claimants.  This  is  the  law  as  unifonidy  held,  and 
althouf»ii  it  may  work  hardship  in  individual  cases, 
the  decisions  of  courts  have  established  it  as  the  rule 
of  law  most  universally  just. 

The  decision  of  international  tribunals  and  of  the 
courts  of  both  countries  wherein  tliis  rule  of  law  has 
been  declared,  have  been  cited  and  connuented  upon 
in  another  part  of  this  argument. 


483 


III 


K.,ir>0!t.,liiii 
40. 


the  w^inifrbd. 
Claim  Xo.  24. 

'riu'  II  h/'i/ml  \\i\s  sci/cd  on  tlic -JOrli  otMiily,  IS'.I-J, 
in  Hcrinu'  Soi,  tor  n  \ioljitinn  ot"  the  modus  rirciidi  of 
1.S!I2. 

Tlic  coniniandcr  of  the  I'nitiMl  Stfitcs  rcvcniu'-cut- 
tor  Hichiiid  lliisli  inion  that  <\i\\  made  tliis  cntrv  in 
tlie  l<»«i': 

At  S.IT)  stoppi'd  and  Uoardcd  .scIiooirt  'vV/H/'/Vtv?,  of  Vic- 
toria, G.  M.  (),  HiMiseii  maater.  Foniid  lier  with  firmr  dead 
unskintied  fur  seals  on  deck,  six  otliers  salted,  and  one 
taken  later  f'roni  the  Wini/i'C(Vs  boats,  all  of  which  fur  seals 
the  captain  admitted  had  been  taken  in  Herinjj  Sea.  The 
evidence  of  violation  of  the  convention  between  the  United 
States  and  (heat  IJritain  being  complete,  seized  the  vessel 
and  i)laced  a  i)rize  crew  of  four  men,  under  charge  of  Lieu- 
tenant Dodge,  on  board,  and  began  towing  her  to  Unalaska 
at  11.15  p.  m, 

l\n'snant  to  tlio  Convt'iition  l)et\voou  tlie  United 
States  of  America  and  (iieat  liritain  for  the  renewal 
of  the  modus  rirrjidi  of  l.Sill  for  the  year  1S92,  the 
Wfiiifird  was  towed  to  Tnalaska  and  "handed  over 
as  soon  as  j)ra('tical)le  to  the  anthorities  of  tlie  nation 
to  which  .slie  l)eh)n<»ed,"  for  tlie  |)urpose  of  having-  the 
crew  tried  and  tlie  vessel  condennied. 
R.^^1510,  line  Under  date  of  Jnly  27,  ('ai)tain  Coulson,  connnand- 
inji"  the  RiclKtrd  liusli,  made  this  entry  in  his  log-: 

At  10  a.  m.  United  States  steamer  Yorkfoirn  arrived  iu  port. 
Commanding  ofticer  paid  otticial  call  on  Commander  Evans. 
Later  Commander  Evans  and  Captain  Parr,  Royal  Jfavy, 
came  on  board  and  conferred  with  commanding  ofticer  as  to 
disposition  of  seized  schooner  Winifred. 

484  '1 


THK    WINIFRED. 


485 


-Inly,  isii-j, 

IS  rirrm/i  of 

<'\('lUU'-('Ut- 

his  (Miti'v  in 

li/red,  of  Vic- 
itli  four  doatl 
tod,  and  one 
lii(Oi  t'ur  seals 
lift'  Sea.  The 
II  the  United 
ed  the  vessel 
arge  of  Lieu- 
to  Unalaska 

the  United 
lie  renewal 
r  1S92,  the 
jnuled  over 
tlie  nation 
having  the 

,  connnand- 
hi.s  h)^: 

rived  iu  port, 
vnder  Evans. 
Royal  l!favy, 
:  officer  as  to 


Tills  entry  shows  that  prior  to  the  27th  day  of  July 
Captain  (Joulson  had  arrived  at  Unalaska  with  tlie 
W'nifjml  in  tow. 

(/aptain  (Joulson  testified  that  "Captain  Parr,of  the  h.,  ir>ii,  Hue 
Koyal  Navy,  known  as  the  senior  ofticer  of  Her  '^' 
JMajestv's  fleet  in  the  HeriimSea  waters  in  connection 
with  the  moiJus  i-'n:citt/i,  and  Capt.  Hoblev  D.  Evans, 
of  the  United  States  Xav^',  and  the  coniniandin<''  otfi- 
cer  of  the  Vorhfoirn,  also  the  senior  otlicer  of  the 
American  fleet,  and  Cajitain  Coulson,  of  the  revenue 
cutter  ///<.vA,"  were  together  in  conference  on  the27tli 
of  Julv. 

As  the  result  of  that  ('onference  Cajitain  (Niulson 
advised  the  Secretary  of  the  Treasury  at  Washing- 
ton as  follows: 

On  July  27  Coinmander  Evans,  I'nited  States  Navy,  and  H.,  ir)i5. 
Cajft.  A.  H.  Chase  I'arr,  Royal  Nary,  commanding  HirMajesty^s 
naval  force  in  Bering  tiea,  met  by  appointment  on  board  the 
Rusk,  and  after  a  full  discussion  of  the  matter  it  iras  agreed 
on  the  part  of  Captain  I'arr  that  his  Corernment  u-ould  icaive 
the  right  of  custody  of  the  .seized  vessel  until  she  had  been 
tried  by  the  United  States  courts  for  violation  of  the  United 
States  revenue  laws,  provided  that  in  case  of  failure  to  con- 
vict her  on  those  cliarges  the  vessel,  her  cargo,  outtits,  etc., 
and  master  and  crew,  were  to  be  turned  over  to  the  repre- 
sentatives of  Her  Majesty  the  Queen  of  Englaijd,  at  Vic- 
toria, British  Columbia,  for  trial  on  the  charge  of  violation  of 
the  terms  of  the  existing  modns  rivendi. 

Acting  under  instructions  received  from  Commander 
Evans,  United  States  Navy,  I  have  therefore  made  formal 
seizure  of  tlie  Winifred,  and  arrested  her  mastci",  (x.  M.  (). 
Hansen,  and  crew,  for  violation  of  the  United  States  revenue 
laws,  as  above  cited,  and  as  soon  as  the  necessary  papers 
can  be  procured,  she  will  be  delivered  into  the  custody  of 
Licutenant-Coniniaiider  Tanner,  of  the  United  States  Navy, 
couiiiianding  U.  S,  «toa!J)er  AlhatmsN,  for  delivery  into  the 
Lands  of  the  United  States  dii^trict  attorney  at  Sitka. 

This  letter  disclos(\s  that  suhse({uent  to  the  time  of 
the  sei/Aii'eoi"  the  W'ni'ifrcd  in  Bering  Sea,  on  the  20th 
of  July,  at  which  time  she  was  seized,  as  stated  in  the 
log  of  the  Rush,  for  violation  of  the  Convention  be- 
tween the  United  States  and  Great  Britain,  Captain 


I 


480 


THK   WINIFRED. 


(.S)uls()ii  liiul  received  intoi'iniitioii  tlint  the   W'iiii/rnl 
had  violated  the  revenue  laws  <>{'  the   Tiiited  States 


K.,  1518,  line 
2H. 

K.,  151K,  line 
1. 

K.,  mis,  line 
4. 


of  America. 


R.,  1532,  line 
62. 


R.,  1511,  line 
44. 


Exhibit  111, 
(t.B.,  claim 
24;  Exhib- 
its, p.  327. 


Exhibits,    p. 
332. 


riiis  intonnatioii  Captain  (-onlson  di<l  not  liave  at 
the  time  of  the  seizure  of  the  W'niifrctI  in  Herin;^' Sea, 
he  beinji'  afterwanl  informed  of  tlie  facts  by  ('a))tain 
IIoo])er,  wlio  was  in  conunand  of  tiie  Tnited  States 
revenue  cutter  Conritt,  in  a  letter  whicji  was  the  basis 
of  tlie  conference  Ix'tween  Captain  I'arr,  of  ''er  Maj- 
esty's Xav\-  and  ( •onnnander  Kvans,  of  t  United 
States  Navy,  at  which  "it  was  agreed  on  the  i)art 
of  Caj)tain  Parr  that  his  (Jovernmeiit  would  waive 
the  rijii-ht  of  custody  of  the  seized  vessel  until  she 
had  been  tried  by  the  Tnited  States  courts  tor  viola- 
tion of  Tinted  States  revenue  laws." 

This  aj^reement  l)etween  Captain  Parr,  who  re))re- 
sented  in  })ers(Ui  the  sovereif^nty  of  Great  Britain, 
and  Connnander  Evans,  of  the  United  States  Navy, 
was  made  in  the  port  of  Cnalaska,  in  the  '^rerritory 
of  Alaska,  and  within  the  jurisdiction  of  the  United 
States  of  America. 

The  Winifred  was  accordinjjfly  released  from  the 
cluirjies  preferred  for  a  violation  of  the  Convention 
between  (Ireat  Hritain  and  the  Uiiite<l  States,  by  the 
authorities  of  Great  Hritain,  and  formally  re-seized 
within  the  territory  and  jurisdiction  of  the  United 
States,  on  a  char«j'e  of  violatinj^-  their  revenue  laws. 

On  the  27th  <>f  July  Ca})tain  Coulson  entered  in 
his  lofi': 

By  direction  of  Commander  Evans,  the  vessel  was  formally 
declared  seized  for  violation  of  the  revenne  laws. 

Hiereafter  the  Winifred  was  taken  to  Sitka  by  the 
Albatross,  where  she,  with  her  boats,  tackle,  apparel, 
furniture,  and  car<>(>,  was  libeled  for  a  violation  of 
the  revenue  laws  of  the  Unite<l  States. 

Her  owner,  Charles  Spring-,  filed  an  answer  to  the 
merits,  not  raising-  the  (question  of  jurisdiction. 

A  stipulation  was  signed  agreeing  tliat  testimony 


THE   WINIFRED. 


487 


lie  Whi'ifii'tl 
nitc'd  Stutos 

I  not  lisivc  at 
1  Herinji' Sesi, 
s  hy  ('jiptiiin 
'iiitcd  States 
va.s  tlio  basis 
of  ''er  Maj. 
t  United 
on  ilie  part 
A'ould  waive 
^el  until  slie 
rts  tor  viola- 

•,  wlio  rejM'e- 
reat  Britain, 
■itates  Navy, 
he  '^rerritory 
f  the  United 

ed  from  the 
t  Convention 
tates,  bv  the 
lly  re-seized 
"  tlie  United 
ivenue  hiws. 
1  entered  in 

1  was  formally 
ws. 

Sitka  by  the 

kle,  apparel, 

violation  of 

nswer  to  the 

ietiou. 

it  testimony 


be  taken  in  tlie  city  of  Victona  on  liehalf  of  the 
claimant  to  the  vessel  ]>ursuant  to  which  the  testi- 
mony of  (.harles  Sprinji,  the  owner  of  the  vessel,  was 
taken  in  his  own  Ix'half. 

On  the  1st  of  March,  1  S94,  the  case  came  on  to  be 
heard  in  open  court,  on  the  j)lea<lin}^s  and  proofs,  and 
a  decree  was  entered  "that  said  schooner  WiniJ'rctl, 
h(^r  lM>ats,  tackh;,  apparel,  furniture,  and  carj^o,  and 
all  property  foun«l  upon  or  appertainin*;'  to  said  vessel 
be,  and  the  same  are  hereby,  condennied  as  forfeited 
to  the  United  States." 

On  tlie  '■J  ith  of  April,  1S;>4,  the  court  decreed  that 
the  Winifred,  her  boats,  tackle,  apparel,  fiu'niture,  and 
carji^o  should  be  sold  after  the  usual  notice. 

Tn  accordance  with  the  decree  of  the  court  the 
Winifred  was  scdd  and  became  a  total  loss  to  the 
owner.  Charles  Sprin<>-,  the  owner,  never  tiled  a 
claim  for  appeal  or  jjerfected  an  appeal  after  havin<^ 
submitted  tt)  the  jurisdiction  of  the  court  and  having' 
defended  the  case  on  its  merits. 

The  Government  of  the  United  States  claims  that 
it  is  not  liable  for  the  loss  to  the  owner  of  the  Wini- 
fred. The  vessel  was  seized  in  Bering-  Sea  for  a  vio- 
lation of  the  modus  viveudij  and  (►fl'ered,  in  accordance 
with  the  terms  of  the  modus,  to  the  authorities  of  the 
nation  having  jurisdiction  to  try  the  offense  and  imi)08e 
the  penalties. 

Cai)tain  Parr,  of  Her  Majesty's  Navy,  representing 
the  authority  of  Her  Majesty  in  the  waters  of  ]3ering 
Sea,  and  the  sovereign  power  of  Great  Britain,  ordered 
tliat  the  Winifred  should  be  released  from  trial  for  a 
violation  of  the  Convention  betw^een  the  two  Govern- 
ments, and  agreed  that  she  should  be  re-seized  by  the 
United  States  and  jn'oceeded  against  for  a  violation 
of  its  revenue  laws. 

In  the  Argument  liled  on  behalf  of  Great  Britain  is 
the  assertion: 

tJnder  said  modus  it  was  incumbent  on  the  United  States 


Kxliil)it8, 

3(i4. 
IvvliibitH, 

:j«5. 

p. 
p- 

Kxliibits, 
Kx'iiliitH, 

mi. 

p. 
P' 

Exhibits,    p. 
370. 


Exhibits, 
p.  111. 


Arg.  on  be- 
half of  G. 
B.,  p.  177, 
line  31. 


488 


THE    WINIFRED. 


British  Arg. 
p.  178. 


to  forthwith  deliver  the  vessel  to  the  British  authorities,  and 
Commander  Parr  had  no  authority  whatever  to  give  the 
alleged  consent,  and  thereby  waive  any  delivery  of  the 
vessel  to  the  British  authorities. 

Tlie  Govenniieiit  of  tlie  United  States  contends 
tliat  tlie  delivery  of  the  Winifred  to  Commander  Parr 
was  a  delivery  "to  tlie  anthoritiesof  tlie  nation  alone 
havinjj-  jurisdiction,"  and  that  Commander  Parr,  rep- 
re.  enting-  as  he  did  the  sovereign  power  of  Great 
Britain,  presumptively  had  authority  to  consent  to 
a  waiver  of  the  rights  of  Great  Britain,  and  that  his 
consent  is  binding  upon  and  estojis  that  nati<Mi  from 
making"  a  claim  against  the  United  States. 

The  Argument  on  behalf  of  Great  IMtain  relating 
to  the  claim  of  the  Winifred  ctmtains  a  letter  from 
the  Secretary  of  State  for  the  Ignited  States  under 
date  of  October  31,  1894,  by  which  it  a})pears  that 
the  Department  of  State  had  confused  the  case  of  the 
Winifred  with  the  claim  of  the  Henrietta.  The  letter 
is  used  for  the  ])urpose  of  showing  an  admission  on 
the  jiart  of  the  United  States. 

The  letter  of  the  Acting  Secretary  of  the  Treas- 
ury, written  under  date  of  November  13,  1895,  sub- 
setpient  U>  the  letter  of  Mr.  (iresham  and  prior  to  the 
date  of  the  treaty  mider  which  this  High  Commission 
convenes,  states  the  jiosition  of  the  I  nite<l  States 
with  referencf^  to  the  claim  of  the  Winifred. 

R.,1800,  liueThe  Honorable  the  Secretary  of  State: 

Sir:  Keleniiig  to  my  telegram  of  the  Dtli  instant,  I  have 
the  honor  to  stat*^  that  the  British  schooner  Winifred  was 
seized  by  steamer  h'ltsli  -Inly  L'O,  ISOU,  for  violation  of  the 
proclamatioii  of  the  I'resident  ol'  the  I'nited  States  and  the 
JJritish  lleiing  Sea  act  of  Parliament  of  l.'^Dl,  and  the  order 
in  council  of  I8JH.  iuid  the  order  in  council  of  May  9,  18!>2. 
The  seizure  was  made  about  15  miles  from  Annalc  Island. 
After  being  towed  to  TJnalaska,  information  was  furnished 
by  Capt.  C.  L.  Hooper,  commanding  the  revenue  steamer 
(J(n-inii,  to  the  efl'ect  that  the  Winifred  was  liable  to  seizure 
and  her  master  and  crew  to  arrest  for  violation  of  the  Fnited 
States  revenue  laws,  previous  to  entering  the  Bering  Sea. 


40. 


THE    WTNIFKED.  489 

Upon  consultation  between  Commander  Evans,  U.  S.  N., 
and  Captain  Parr,  of  Her  Majesty's  Navy,  the  latter  waived 
his  Government's  right  of  custody  until  she  could  be  tried 
for  violation  of  the  United  States  revenue  laws. 

By  direction  of  Commander  Evans,  the  Winifred  was 
formally  seized  for  violation  of  the  United  States  revenue 
laws  and  taken  to  Sitka  by  the  Alhatrosx.  She  was  subse- 
quently condemned  by  the  United  States  court  at  Sitka  and 
sold,  and  the  money  has  been  turned  into  the  Treasury. 
EespectfuUy,  yours, 

W.  E.  Curtis,  Se<,ietary. 

The  United  States  deny  all  liability  f*.r  dania<>es 
sustained  by  the  owner  of  the  Wui'ifrcd,  but  the 
schedule  attached  to  the  claim  in  the  Arj^uinent  con- 
tains home  items,  reference  to  which  will  be  made. 

The  seal  skins  charged  for  were  all  taken  in  viola- 
tion of  the  law  of  the  nation  to  which  the  owner  of 
the  Whiifred  owed  allegiance,  and  to  award  any  sum 
for  a  catch  of  seals  made  contrary  to  the  laws  of  both 
countries  would  b(?  against  })ublic  i)olic}'.  This  rule 
of  law  seems  to  have  been  partially  regarded,  for  no 
claim  for  a  prospective  catch  which  woidd  have  been 
taken  in  violation  of  the  Con-vention of  1  .S!)2  between 
the  United  States  and  (Ireat  Britain  is  made. 

The  value  of  this  Aessel  of  13  tons  is  placed  at 
82, 000.     She  was  built   in  1<S()9,  re})aired  somewhat 
iu  18J)2,  and  the  value  of  ^110  i)laced  uiuni  her  by  i'^!"'^»*;  330, 
tlie  aj)praisers  was  a  hheral  one. 

There  is  no  testimony  in  the  Record  upon  which  to 
base  the  item  "I'ime  and  expenses  of  owner,  ^200," 
iind  there  is  no  evideuce  that  rlio  crew  suffered  hard- 
ships orwere  detained.  The  (^i)»tain  was  detained  at* 
Sitka  because  he  was  arrested  for  a  violation  of  the 
ihiws  of  the  United  Stat<^s. 

These  claims  are,  more(>ver,  ])ersonal  claims,  not 
included  iu  the  Ccmvention. 


i 


tee  wanderer. 
Claim  No.  25. 

Tins  claim  is  submitted  muler  the  terms  of  the  iifth 
paragTai)h  of  the  convention  creating  this  High  Com- 
mission. 

The  Government  of  the  United  States,  animated  hy 
a  sense  of  justice  and  by  a  desire  that  all  liability 
should  be  definitely  and  fidly  settled  and  determined, 
and  all  possible  claims  and  causes  of  complaint  or 
wrongdoing  removed,  was  willing  that  all  claims 
which  the  peojde  of  Her  Majesty's  Government  be- 
lieved themselves  to  have  suffered  by  reason  of  the 
acts  of  the  Goverimient  of  the  United  States  in  assert- 
ing her  supposed  rights  in  Bering  Sea  should  he 
investigated,  and  full  redress  afforded  by  this  High 
Par.  5,  coil-  Conuuissiou,  and  consented  to  the  submission  of  these 
Feb.  H,  additional  claims  set  out  byname  in  ])aragraph  5  of 
isoti.  f]jg  ccmvention  of  February,  18136,  although  not  ad- 
mitting any  liability. 

The  claimants  availed  themselves  of  the  oppor- 
tunity afforded  for  the  submission  of  their  alleged 
grievance  and  produced  witnesses  to  inform  the  High 
Connnission  of  the  ground  of  their  complaint. 

The  United  States,  for  the  first  time  inf«)rmed  of 
the  nature  of  this  claitn,  insist  that  the  testimony 
clearly  shows  that  the  claimants  suffered  no  damages 
arising  from  any  act  or  omission  on  the  part  of  any 
officer  in  their  service,  or  on  the  })art  of  any  agent 
clothed  with  their  authority. 

The  Waitdcrcr,  as  claimed  by  the  master  and  owner 
^io!"^^'  ^'"''ot  the  vessel,  had  l)een  sealing  in  the  spring  of  18S9 
on  the  west  coast  of  Vancouver  Island. 

480 


In 

idii 
)roci 
nitil 
iiile! 
ir()C( 

Ci 
liter 

A. 

rere 

A. 

nan  ( 

[Ot  S( 

heir 
leing 
A. 
roul( 
rliat 

A. 

(h 
<}. 

r  121 
A. 

A. 

Q. 
A. 

let/  I 

<>• 
A. 

Q. 

A. 

A. 

Tl 

iritii 


ernis  of  the  fifth 
tliis  High  Com- 
es, auiniated  by 
lint  all  liability 
iiicl  deterniiued, 
of  coinplaint  or 
that  all  clainis 
jroveniment  be- 
ly  reason  of  the 
States  in  assert- 
Sea  should  be 
d  by  this  Hi<>h 
mission  of  these 
[  ])aragraph  5  of 
Ithoii^h  not  ad- 

^  of  the  oppor- 
if  their  alleoed 
nforiu  the  High 
Dniplaint. 
me  inf«)rmed  of 
:,  the  testimony 
red  no  damaoes 
rhe  part  of  any 
ft  of  any  agent 

iister  and  owner 
spring  of  18Sy 
d. 


THE    WANDEREK. 


491 


liue 


In  the  early  part  of  May,  after  luiving  engaged  an 
ndian  erew  for  sealing  in  Bering  Sea,  the  vessel 
)roceeded  up  the  west  coast  of  Vancouver  Island '^•'i'"^^'^' ^^ 
mtil  off  Cape  Scott,  a  distance  of  nearly  1, ()()() 
uiles  from  Bering  Sea,  when  the  Indians  refused  to 
iroceed  further  on  the  iournev  toward  Beriii"-  Sea. 

Ca])tain  Paxton,  (piestioned  as  to  the  reason  for  the 
iiterruption  of  the  voyage,  testified : 

(^.  What  was  the  occasion  of  their  going  back  on  you?      K-.  1537,  line 

A.  They  heard  from  another  vessel  that  the  Americans    ^^' 
rore  threatening  to  make  seizures,  and  they  refused  to  go. 

(}.  What  reason  did  they  then  assign  to  yon  for  refusing 

go? 

A.  All  they  wanted  to  know  was  whether  I  was  a  rich 
nan  or  a  poor  man ;  if  I  had  lots  of  money  to  pay  them  if  I 
!ot  seized.    I  told  them  no.    They  then  refused  to  go. 

(f.  Was  there  any  reference  made  by  them  to  the  fact  of  ^^•.^^^''^^' '*"'' 
heir  having  been  in  Bering  Sea  before  and  after  (having) 
leing  seized? 

A.  Yes.  They  said  they  had  suffered  great  hardships  and 
rould  not  go  again  unless  I  would  guarantee  their  pay  for 
rliat  skins  they  might  have  when  the  vessel  got  seized. 

Q.  What  did  yon  do  then?  ,    .    .  il.,  L537,  line 

A.  Went  back  to  Victoria. 

( )n  cross-examination  Captain  Paxton  testified  : 

<)•  You  say  these  Indians  threatened  you  about  the  l)th  K-_i''3S,  line 
rl2thofMay!  '"• 

A.  Yes;  something  like  that. 

(^  And  they  were  afraid  they  would  not  get  their  pay? 
A .  Yes,  sir. 

(i>.  For  the  skins  they  actually  took  ? 
A.  Yes;  that  is,  if  the  vessel  was  seized,  and  I  donH  thinJc 
wfi  fcoiiUI  either. 

(),  They  asked  you  if  you  were  a  rich  man  or  a  poor  man?  K.,  1588,  line 
A.  Yes.  •*•^• 

().  If  you  had  been  a  rich  man  they  ivould  have  gonel 
A.  Yes. 

'i).  And  because  you  told  them  you  were  a  poor  man  they 
niild  not  </of 
A.  Wo.  ' 

The  only  other  witness  produced  on  behalf  of  Great 
iritain  who  had  a  ])ersonal  knowledge  of  the  occur- 


492 


THE    WANDERER. 


reuces  was  Aug-uste  Bjerre,  mate  of  the  vessel  at  tl 
time. 


•JR.,  1541,  line 
40. 


Q.  />/f/  you  continue  to  go  to  Bering  Seat 

A.  JS'o,  sir;  ice  had  to  turn  bach 

Q.  Whyf 

A.  Becatixe  the  Indians  re/used  to  go. 

Q.  Will  you  say  what  was  the  occasiou  of  their  refusing 
go  to  Bering  Sea? 

A.  The  Indiaus  were  scared  to  go;  they  were  scared 
seizure.  Some  of  them,  I  believe,  had  been  seized  before,  a) 
they  had  been  talking  with  other  Indians  while  they  were  aic^ 
from  the  vessel  out  hunting,  anil  they  n-ere  scared  of  the  .'ess 
being  seised,  and  as  they  knew  that  Captain  I'axtonhad  nothii 
but  the  vessel  they  were  afraid  they  tconld  get  no  pay  if  tk 
tcere  seized. 
E.,_ir.4i,  Hue  Q.  >sow,  ott"  Cape  Scott,  on  the  occasion  in  question,  wbi 
^"-  was  the  conversation  ?  » 

A.  Well,  they  a'ere  seared,  as  some  of  them  had  been  seizi 
before.  They  were  scared  to  go  into  the  Bering  Sea  with  Capta 
l'a.vton.  They  kneic  that  he  had  nothing  but  his  vessel,  ai 
they  were  scared  that  if  the  vessel  was  seized  and  he  lost  h 
they  would  get  no  pay  for  the  season'' s  work. 
R.,  1542,  line  Q,  ^y^ig  there  any  other  reason  assigned  for  their  refusing 
^"  go  to  Bering  Sea. 

A.  Xo,  sir;  not  that  I  know  of. 

On  cross-exaniiiiiition  this  witness;  testified  as  fo 
lows: 

R.,  1544,  line     Q.  Did  anyone  on  the  ^'fl^^p/nVr  tell  your  Indians  that  tliei 
■^^-  were  going  to  be  seizures  in  Bering  Sea? 

A.  /  do  not  knoa-  where  the  Indians  heard  that  there  in 
going  to  be  seizures  in  llering  Sea.  The  frst  time  they  spo, 
((bout  it  was  at  sea. 

Q.  Bid  you  know  where  they  heard  it ." 
A.   They  heard  if  in  their  canoes  irhile  they  were  out  huiitiii 
R.,  1544,  line     Q.  Captaui  Paxton  himself  did  not  want  to  turn  aroiv 
38.  because  he  was  afraid  of  seizure? 

A.  Captain  Paxton,  f  fancy,  wanted  to  go  to  the  Beriug  Si 
if  he  eould  get  his  Indians  to  go. 

Q.  And  it  was  because  the  Indians  did  not  wish  to  (jo  iri 
him  that  he  could  not  go:' 

A.    Yes;  th<(t  ir<is  the  reason  that  he  covld  not  go. 
l^>  1544,  lint)     (^,  Confine  yourself  to  the  one  time,  and  tell  us  \vhattb» 
said  then. 

A.  The  Indians  said  that  suppose  they  went  to  Bciiii 
Sea  ami  the  vessel  was  seized;  they  knew  that  Capta 


ixtc 

ft  t 

ere 

line, 

In 

■CM 

itio 
rh 

>1R'| 

low 

li'l 

;i|iti 

a.k 

■  th 

IIIM' 
(m1 
is 

ival'i 
iiii_\ 
;ir*i 
r  t 
•sse 
If  I 

inns 

itlr 
Th 
tlioi 

till 

111  \ 
(lilt 

Vtd' 

l\il< 

iTe 

riot 

ion. 

Th 

iliH* 

i'  U 

ctt 


THE    WANDERER. 


493 


the  vetssel  at  tlj 


I  of  tlieir  refusing  I 


in  in  question,  wbs 


i;-  testified  as  fu 


Indians  that  tbei 


juxton  liatl  no  money,  only  the  vessel,  and  they  could  not 
let  their  pay;  they  would  lose  tlieir  sununer's  work.     They 
|i're  talking  nbout  their  wtnnen  and  little  ones  starving  at 
nine,  and  all  that  kind  of  thing. 

Ill  tlie  pleading's  iilinl  in  tins  chiini  on  belnilt"  of 
treat  Britain  before  this  IIii>li  (Nuiunission,  the  alle- 
litioii  is  made  that  information  of  the  jn'oclamation 
If  tlie  Presi(h'nt  of   tlie   Tinted   States  of  America, 
Vued  on  the  21  st  <hiy  (»f  March,  1SS9,  came  to  tlie 
liiow ledii'e  of  tin-  members  of  the  crew  of  the   IVai)- 
jfcr;  but   there   is  no  testimony  in  tlie  Record  that 
[iilitain  Paxtoii  ever  knew  that  tlie  i)roclaniation  was 
]iii(h'  by  the  President,  tliat  any  member  of  the  <'rew 
the  WdiHlctcr  liad  any  ktiowledue  of  siicli  a  proc- 
linatioii,  or  that   the  refusal   of  the   Indians  to  pro- 
led  to  Beriii;^'  Sea  was  based  iijioii  a  knowledge  of 
lis  ])roclamatioii.     The  only  reason  given  for  the 
caking  uj)  of  the  voyage  is,  as  shown  in  the  testi- 
iiiiy  (pioted  above,   tliiit  the    Indians   were   afraid 
liiit  Captain  Paxton  would  not  Ix*  able  to  pay  them 
the    seals   they   had  already   taken  in  case    the 
I'ssel  should  l)e  seized. 

If  (*aptain  Paxtoii  had  been  a  man  iinaucially  re- 
iiiiisible,  the  Indians,  as  shown  by  the  testimony  of 
[tth  witnesses,woul(l  luu  e  proceeded  on  their  voyag-e. 
J  The  Argument  fih^l  on  behalf  of  Great  liritain, 
Itliough  containing  a  reference  to  the  })roclamation 
I  the  President,  makes  no  claim  that  the  jiroclama- 
lui  was  the  direct  cause  of  the  interruption  of  the 
\ini(l('vcy\s  vovao-e,  or  that  it  was  even  remotelv  con- 
kted  with  the  refusal  of  the  Indians  to  continue  the 
|i\  iige  beyond  Cajie  Scott.  Even  though  the  claim 
itre  made,  it  is  not  apprehended  that  it  would  be 
[ri(tuslv  advanced  to  base  a  demand  for  damages 

linll. 

jTlie  only  evidence  in  the  Record,  moreover,  of  the 

lihlication  of  the  ])roclamation  of  the  President  of 

United  States,  under  date  of  March  21,  18S9,  is 

tter  from  William   Windoin,    Secretary  of  the 


494  THE    WANDERER. 

Treasury,  addressed  to  Capt.  L.  0.  Shepard,  coin 
niaudiiiji'  officer  of  the  revenue  cutter  Unslt.  Tlii 
letter  contains  tlie  first  instruetioi.s  o-iven  to  the  coiii 
nian<Iin«i'  officer  of  tlie  cutter  wliich  was  to  jtatr* 
Bering-  Sea  in  tlie  year  18H1),  and  bean;  date  Mjr 
23,  1S8!).  In  his  testimony  the  captain  of  the  Waii 
J»'"  1537,  line  ^/(-yy>;-  states  that  the  panic  of  the  Indians  occurre 
about  the  !>th  or  12th  of  May.  It  is  certain  that  tli 
R.g^i833,  line  yfaudcirr  was  in  the  port  of  Victoria  May  23,  1X8! 
for  uj)on  that  day  a  charter  party  was  made.  Tli 
publication  of  the  proclamation  of  the  President  afte 
the  date  of  the  mutiny  of  iJie  Indians,  and  instnic 
tions  given  to  the  captain  of  a  cutter  in  the  servic 
of  the  United  States  after  the  date  of  the  refusal  ( 
the  Indians  to  j)roceed  to  Bering  Sea,  will  assureJl 
not  be  advanced  as  the  cause  of  the  interruption  ( 
the  voyage  of  this  vessel. 

The  findings  of  fact  of  the  Tribunal  of  Arbitratioi 
at  Paris,  discloses  that  the  nature  oi  the  warnings  giv 
to  the  various  vessels,  whose  claims  are  schedule 
between  pages  1  and  GO,  was  an  actual  notice  give 
by  an  officer  of  one  of  the  cutters  in  the  service  of  tli 
Award  of  the  Government  of  the  United  States,  and  "that  the  sal 
o/Arbitia-  Several  searches  and  seizures  of  vessels  were  made  1) 
tio"  •'""-public  armed  vessels  of  the  United  States,  the  con 
under  themaiiders  of  which  had,  at  the  several  times  when  the 
tj'®,**^\ooo^were  made,  from  the  executive  dei)artment  of  the  Go 
ernment  ot    the  united  States,  instructions. 

There  is  no  evidence  of  any  actual  notice  given 
or  any  seizure  of  the  Wandevcr. 

When  the  Government  of  the  Ignited  States  coi] 
sented  to  the  submission  of  this  claim  to  this  HiJ 
(Commission,  it  was  undoubtedly  re})resented  b}'  til 
am])assador  negotiating  the  Convention  on  the  pal 
of  Her  Majesty  that  the  testimony  of  the  claiinaiij 
would  develo])  the  fact  that  some  actual  warning 
the  nature  found  by  the  Paris  Tribunal  of  Arbitd 
tiou  to  have  been  given  to  certain  other  vessels  w^ 


THE    WANDERER. 


41)5 


.  ►^liepard,  ('t»ni| 
ter  Hush.  'V\\\\ 
•iven  to  the  ('(»iiil 
h  was  to   i)ati(l 

bears  date  ^hv 
tain  of  the  Waul 
Iiuliaiis  oeciurei 
s  certain  that  th| 
ia  May  23,  IS-Sl 
was  made.     I'lil 
le  President  aftel 
aus,  and  iustnu 
ter  ill  the  servic 

of  the  refusal  ( 
ea,  will  assureJli 
le  interruption  d 

[lal  of  Arbitratioij 
he  warniiij>s  oivej 
ns  are  sehedulel 
.'tual  notice  fiivel 

the  service  of  tl( 
ind  "that  the  siii| 
^Gls  were  made  h 
.  States,  the  ('on| 
1  times  when  thtj 

tmentof  thedcH 

ructions." 

lal  notice  given 

'iiited  States  col 
aim  to  this  Hi} 
jpreseiited  by 
ntion  on  the  paj 
y  of  the  daimaii 
actual  warning" 
ibuiial  of  Arbitii 
other  vessels  w 


•iiven  by  an  officer  in  the  service  of  the  I'liited  States 
(iovernmeiit,  or  by  someone  acting-  under  the  author- 
ity (►f  the  said  (xovernmeiit,  to  the  WaiKhrrr.  The 
testimony  of  the  claimants  has  been  taken,  and  it  is 
{ippareiit  that  the  ambassador  of  Her  Majesty  was 
misinformed  by  the  parties  in  interest  as  to  the  nature 
iof  this  claim. 

'^riiat  no  damages  can  be  awarded  for  the  interrup- 
jtion  of  a  voyage,  the  sole  reason  for  which  was  that 
I  some  uncivilized  Indians  aboard  the  vessel  had  re- 
ceived from  other  uncivilized  Indians  some  diapha- 
Inous  rumor  that  there  were  seizures  being  made  in 
iKering  Sea,  is  beyond  (piestion. 

The  captain  of  the  Wainh'rcr  landed  the  Indians 
jwho  had  refused  to  iiroceed  with  him,  and  concluding 
jtliat  it  was  too  late  t<>  pick  up  a  crew  on  the  west  K' \^'3'^- ^'"® 
jcoast  of  Vancouver  Island,  made  no  attempt  to  secure  k.,  I'sso,  Hue 
lanother  crew,  but  proceeded  to  Victoria.  „"V...  .. 

H  ,',',,,  i-       1  -x    R-'  l-'^^'  line 

e  made  no  attemiit  to  secure  a  crew  ot  white    6. 

hunters,  and  gives  as  the  reason  for  his  failure  to  do 

|s(»  the  fact  that  "A  poor  man  could  not  afford  to  em- 

Iploy  them." 

The  rule  of  law  is  well  settled  that  a  claim  for 

Idamages  can  not  be  based  solely  upon  the  fact  that 

Itlie    ])eculiar   financial    conditions  of  the  individual 

jcomplaining  were  the  cause  of  the  injury.     If  Cap- 

jtiiin    Paxton   had  been  in  a  financial  condition  tt) 

joperate  his  business  he  would  have  had  no  trouble 

|\vith  his  Indian  crew  and  there  would  be  no  claim 

before  this  High  Commission. 

The  Argument  on  behalf  of  Great  Britain  makes  no 

Ircference  to  the  earniuQs  of  this   vessel  under  the  i^j  i**33,  line 

lajireement,  in  pursuance  of  which  the  vessel  pro- 

Icceded  to  Shumagin  Island  at  the  entrance  to  Bering 

5('a,  subsequent    to  the  time  of  the  refusal  of  the 

Indians  to  continue  the  voyage,  and  brought  down 

in  Victoria  a  (piantity  of  skins,  for  which  service  the 

h'ssel  received  payment.     On  the  contrary,  the  claim 


49fi 


THE    WANDERER. 


R.,  1900, 
13. 


R..  1538, 
10. 


R.,  l.")36. 


is  made  tor  tlie  value  <^f'  tlie  use  of  the  Wandcrvt- 
line,|m.jjj„.  iin,  eutire  season  of  IHS'I,  altliou'>"}i  she  h'ft 
Victoria  for  a  vovaye  to  8hiinia<iin  Ishiiul  on  the  23(1 
of  May.  INtssihly  this  charter  i)arty  is  not  referred 
to  because  of  the  fact  that  tlie  charter  value  of  this 
vessel,  viz,  8100  per  month,  in  addition  t(t  the  \va<»('s 
of  the  ci'ew  and  the  captain,  does  not  compare  favor- 
al)ly  with  the  crossly  exai>\ii'erate<l  claim  of  818,447 
for  the  use  of  this  vessel  from  the  lOth  day  of  .July. 
line  or  the  he^'innin^' of  the  sealinj^-  season,  to  the  2(>th  (tr 
2')th  of  Auj^-ust. 

A  claim  is  made  in  the  schedule  attached  to  tlic 
statement  of  the  dama<>'es  suffered  hy  the  owners  of 
this  vess(d  in  the  ar^^ument  on  behalf  of  ( Jreat  Britain 
for  "lejial  and  other  ex])enses,  ^^^oO,"  and  "time  and 
expenses  of  owner,  8200." 

There  is  n(>  testimony  inthe  Uecordto  su])port  either 
(daim,  and  no  reference  is  made  to  any  testimony. 

'i'lu'  Wdiidcn'r  was  not  outfitted  for  a  voyag-e  to 
Berin<4-  Sea,  and  suffered  no  loss  on  account  of  expend- 
itures for  supplies. 

Her  (diarter  value  wc^uld  be  determined  on  a  differ- 
ent basis  than  that  made  use  of  in  estimatino-  the 
(diarter  value  of  a  vessel  completely  outfitted  for  a 
sealinj^'  voyag-e. 

The  (Government  of  the  United  States  contends 
that  no  loss  accrued  to  the  schooner  Wanderer  or  her 
owners  as  discdosed  by  the  testimony  for  which  it  is 
chargeable,  and  that  no  sum  should  be  awarded  the 
claimants. 

Robert  Lansing. 
'    •  Charles  B.  Warren. 


liii 


Don  M.  Dickinson. 


the  JFandcn'r 
liou^'h  she  left 
iuid  (»u  tlio  23(1 

is  not  r(}fenv(l 
dr  vnhie  f>t"  this 
)ii  t(»  tht'  wji^^cs 
('(nnj)aiv  favor- 
aim  of  sl8,44T 
h  (h)y  of  July. 
,  to  tlie  '-Mith  (»• 

ittachod  to  tlie 
r  the  owners  of 
»f  (ireat  Britain 
'  and  "time  and 

osu))|)ort  either 
y  testimony, 
tor  a  vovaji-e  \o 
onnt  ot  expend- 

:ne(l  on  a  differ- 

estimutinji'  the 

•  <Hitfitted  for  a 

States  contends 
Wanderer  or  her 
y  for  which  it  is 
be  awarded  the 

Lansing. 
s  B.  Warren. 


OO^TEKTS. 


Pnge. 

Introductory  statement 1_12 

As  to  reflections  upon  the  United  States 1 

Kepresentative  statements  in  the  Argument  of  Great  Brit- 
ain, and  comments  thereon 5 

Alleged  "  iTisults  to  flag,"  and  comments 8 

Comparative  unimportance  of  the  claims 11 

Summary  of  positions  in  reply 12-19 

The  international  law  applicable  herb 19-39 

The  questions  ruled  by  authoritative  and  positive  law,  as 
settled  by  treaties,  judgments  of  international  tribunals 

and  of  courts 19 

As  applied  to  the  claims 20 

Scope  and  interpretation  of  the  convention 22-39 

Jurisdiction  under 22, 24, 33 

Construction  in  general 23 

Prior  diplomatic  correspondence  can  not  enlarge 23, 24, 32 

No  ambiguity;  plain  reference  of  specitic  matters  to  the 

Commission 25 

Precedents  and  authorities 27 

No  other  claims  referred  than  those  specified 32 

Analysis  of  convention 33 

Claims  of  specified  "persons"  referred 36, 37 

Persons  in  whose  behalf  Great  Britain  can  not  inter- 
vene under  the  Convention 40-66 

British  subject  domiciled  in  the  United  States  a  civil  citizen 

of  latter  nation 40 

Term  "British  subjects"  intentionally  omitted 41 

Evidence  of  domicile 43 

Owes  obedience  to  laws  of  the  United  States 44 

And  allegienoe  to  their  sovereign  claims 45 

I 


ii  contents. 

Persons  in  whose  behalf  Great  Britain  can  not  inter- 
vene UNDER  TUE  CONVENTION — Continued.  Ptigo. 
Great  Britain  can  not  make  reolaniation  against  the  United 

States  for 40 

Limit  of  Great  Britain's  riglit  to  intervene  for  protection. .  49 

Tlie  Treaty  of  1815  covers  case  of 61 

Ofiffinul  citizens  of  United  IStates   ircn  if  domiciled,  if  not 
naturalized,  in   Great  ISritain,  not  'persons  for  tcliom  that 

nation  can  niahc  reclamation 53-66 

Antliorities  in  Britisli  Argument  analyzed 54 

Such  citizens  still  owe  allegiance  to  sovereign  claims  and 

extraterritorial  laws  of  United  States 69 

Nation  of  domicile  can  not  make  reclamation  against  country 
of  origiiuil  allegiance  for  injuries  suflered  in  violating  such 

allegiance  and  laws 03 

The  claims  iikre  not  claims  of  nation 06, 84 

Vessels — Kegistuv  and  flA(}  not  material  here 68-70 

A^essels — ;Nationalitv  follows  ownership,  not  owner- 
ship nationality  . 71-81 

liegistry  by  British  and  American  authorities  not  conclu- 
sive against  anyone  except  person  securing  it 73 

It  is  a  municipal  regulation  only 74 

Authorities  in  British  argument  analyzed 79 

Begistry,  not  effective  like  a  "sea  letter"  or  "ship's  pass". .  81 
The  specific  claims  eliminated  hecause  of  citizenship, 

civil  or  p(^litical 86-93 

Compensation  or  "Measure  of  Damages" 93-148 

Prospect  ire  Catch,  loss  of  Catchy  etc 93 

Prospective  Catch — The  Judgment  of  Geneva 94 

Error  in  opposing  argument  corrected 94 

Prospective  Catch — British  and  American  authorities 101 

Prospective     Catch — Judgments    of    other    International 

Tribunals 105 

Prospective  Catch — Other  judgments  of  the  courts 109 

Prospective  Catch — Authorities  in  opposing  argument  ana- 
lyzed    110 

Compensation —  Warnings 116 

No  prospective  catch 116 

Proper  measure 124 


CONTENTS. 


Ill 


IT  INTER- 

Pttge. 

lie  United 

46 

)tection . .        49 

51 

ed,  if  not 
cliom  that 

53-00 

54 

laims  and 

59 

st  country 
itiug  sucli 

03 

CO, 84 

E 08-70 

L'    OWNEB- 

71-81 

ot  conclu- 

73 

74 

79 

'spass"..        81 

IZENSHIP, 

80-93 

93-148 

93 

94 

94 

ities 101 

eruational 
105 

8 109 

iment  ana- 

110 

116 

116 

124 


Compensation  or  "Measure  of  Damages"— Continued. 

Punitory  or  vindivtive  dnmaf/es 

Alabama  Claims  case  not  in  point 

The  charge  of  wantonness 

Keview  of  the  authorities 

rreposteroHii  claims 

Experience  under  other  conventions 

Comparison  with  precedents 

Personal  claims  for  damages  for  false  imprisonment,  etc 

Claims  for  letjal  serriees 

The  measure  of  value  of  seal  sl-ins 

Interest  as  damages 

Interest  in  lieu  of  future  earnings  and  the  future  earnings 
also— legal  absurdity 

The  law  as  to  interest — authorities 

The  Costs  in  Sayward  Case 

The  Additional  Claims 

The  "Oscar  and  Hattie"  Case i; 

Observations  applying  only  to  law  on  certain  claims 

The  "  Pathfinder  "  in  Xeah  liaij 

The  "  Black  Diamond,''  Xo.  T)  .\ 

James  Gaudin's  '■'■personal'"  claim 

The  Carolena,  Onward,  and  Thornton  as  to  abandonment  by 
claimants 


Uncertain  character  of  seal  hunting 

No  defined  "sealing  grounds"  in  Bering  Sea 

Duration  of  the  sealing  season  in  Bering  Sea 

"Method  for  computing  the  estibiated  catch"  dis- 
cussed   

The  value  of  seal  skins 

Evidence  relating  to  value  of  vessels 

The  Carolena 

The  Thornton 

The  Onicard 

The  Anna  Bed- 

The  Orace  and  the  Dolphin 

The  Ada 


Page. 
120 
120 
129 
131 
133 
133 
137 
138 
141 
141 
143 

143 
144 

148 

153 

)5,  477 

150 
150 

158 
158 

158 


177 

209 
228 

247 
258 
205 
303 
305 
308 
310 
314 
315 


IV 


CONTENTS. 


I'llgO. 

Pkbsonal  claims  of  captains  and  mates .{19 

The  Cauolena 331 

The  Thornton 3r>7 

The  Onwaud 364 

The  Favourite 3(59 

The  Black  Diamond  (1880) 37.'» 

The  VV.  P.  Saywabd 382 

The  Anna  Beck 388 

The  Alfred  Adams 392 

The  Grace  and  the  Dolphin 395 

The  Ada 402 

The  Triumph  (1887) 4()8 

The  Juanita 414 

The  Pathfinder  (1889) 418 

The  JiLACK  Diamond  (1889)  and  the  Lily 423 

The  Minnie 437 

The  Triumph  (1889) 442 

The  Ariel 447 

The  Kate , .  467 

The  Pathfinder  (1890) 402 

The  Henrietta 466 

The  Oscau  and  Hattie 477 

The  Winifred 484 

The  Wanderer 490 


PlIRO. 

.{19 
837 
3r.7 
364 
3«i9 
37r> 
383 
388 
392 
395 
402 
408 
414 
418 
423 
437 
442 
447 
457 
462 
466 
477 
484 
490 


